Volume 24 — Maine Reports

<p>No individual members of a body corporate have the right, by a bill in equity, without the consent of such corporation, legally obtained, to call the agents or officers thereof to account with the plaintiffs, or to make settlements and adjustments with them, for money of the corporation, alleged to be in the hands of such officers.</p> <p>If the defendants in the bill in equity, as agents of the corporation, have acted fraudulently towards it, obtained fraudulent judgments against it, and on them have made a fraudulent sale of its franchise, these are wrongs primarily committed against the corporation. And until it has been shown to have been incapable of doing it, or to have been faulty, no corporator can assume the right of the corporation to obtain redress for such wrongs, and to settle for them with the persons committing them.</p> <p>If after proper exertions made to procure the corporation to obtain redress, it had been found incapable of doing it, or had improperly or collusively refused to do it, the corporators might, perhaps, have obtained redress by making such corporation a party defendant; but unless it is made a party, it would be improper for the Court to proceed and compel the defendants to make a settlement, which could not be conclusive upon the rights of the corporation.</p> <p>Where shares in a corporation have been transferred by a debtor to his creditor, the latter agreeing with the former “to account for the said shares, or roconvey them,** the debtor has no such interest as would enable him to maintain a bill in equity against a third person by reason thereof.</p>

This action was tried at the September Term in this county, 1843, before Shepley J. The same action had been tried at the term at which it was entered, September, 1841, when the jury disagreed. At this first term, the defendants offered for a plea, that they “ were not guilty of disseizing,” &c. The Judge then presiding ruled that such was not the proper plea, and required the tenants to plead the general issue to a writ of right.

<p>If the plaintiff, during the pendency of an action of trespass in his favor against several persons for a joint trespass, committed upon his person and property, receives of one of them a sum of money, and gives a receipt therefor u in full of said L’s trespass, where he and Wilson P. Hunter, (another defendant) were in company, together with othersthis operates as a discharge of the other joint trespassers, and the action can no longer be maintained against either of them.</p>

This was a bill in equity brought by John Hussey, administrator of the goods and estate which were of William Waters, deceased, and by Edwin Waters, Orrin Waters and Mary Jane Waters, as heirs at law of the intestate, against John Dole, deceased; and was heard on bill, answer and proof. During the pendency of the suit, John Dole died, and his executors and heirs at law took upon themselves the defence.

<p>Exceptions from the Middle District Court, Goqdenow J. presiding.</p> <p>Assumpsit to recover the amount of a bill for medical services performed for the intestate, but not in his last sickness. The defendant, in her brief statement, admitted that the demand sued was a legal demand against the estate, but alleged that she had fully administered upon the estate, (in manner mentioned in the opinion of the Court,) and settled her account of administration in the Probate Court.</p> <p>The defendant offered parol evidence, the facts not appearing on the records, to prove an order of notice, and that the order had been published as directed, of the settling of the administration account of the defendant. To this evidence the plaintiff objected, but the objection was overruled, and the testimony admitted. The plaintiff then contended, that eveu if the account was duly settled, that the case was not brought within the provisions of the statute, which excused an administrator from representing the estate insolvent, and exempted him from liability, on the ground, that the defendant had not appropriated the assets as provided in that statute, and also on other grounds. This objection was overruled. A verdict, was returned for the plaintiff for his damages ; and thereupon he moved the Court for judgment, and that execution should be awarded him for his debt against the estate of the intestate, and for his costs against the proper goods and estate of the defendant. The presiding Judge ordered judgment to be entered for both damages and costs against the goods and estate of the intestate, and that execution should not issue, till the further order of Court, “ in consequence of the facts alleged and proved in the brief statement of the defendant.” The plaintiff excepted to all the rulings of the presiding Judge, excepting so much thereof as- had reference to the entering of judgment against the estate of the intestate for the amount of the damages. The defendant also filed exceptions as to so much of the ruling and decision of the Judge, as ordered judgment to be entered against the estate for the damages and costs.</p> <p>contended in his argument, that after the expiration of the year • an administrator is protected from a suit only when the estate has been represented insolvent, and commissioners have been appointed, as provided in Rev. St. c. 109, § 3; and this should appear of record; or when the estate is insufficient to pay more than the expenses of the funeral and administrator and allowance to the widow and children, as provided in the same statute, § 4. This too should appear by the records. 4 Mass. R. 620; 17 Mass. R. 386 ; 12 Mass. R. 570. In this case no commissioners of insolvency have been appointed, and there is a balance in the hands of the administratrix, after payment for the purposes mentioned in § 4. The administratrix settled her first and only account since the Revised Statutes were in force, and therefore those statutes are to govern.</p> <p>In a case like this the statute is imperative, that judgment for costs shall be rendered against the administrator de bonis propriis. Rev. St. c. 120, § 4.</p> <p>The Judge erred in ordering the execution to be stayed. The estate is not shown to be insolvent in the mode required by the statute.</p> <p>contended that the administratrix was entitled to verdict, judgment and execution for costs in her favor ; and that therefore the decisions of the Judge were erroneous.</p> <p>1. Because she has always admitted^ the existence of the plaintiff’s demand; has pleaded to this action plene administravit. and shown a compliance with the provisions of the statute of March 15, 1838, c. 322, and of Rev. St. c. 109, <§> 4. This is a legal defence, as well as an equitable one. Story’s Pleadings, 198, 200, 202, 203, and notes; United States v. Hoar, 2 Mason, 317; Coleman v. Hall, 12 Mass. R. 571; Shillaber v. Wyman, 15 Mass. R. 323; Johnson v. Libby, ib. 140; Hunt v. Whitney, 4 Mass. R. 620.</p> <p>2. Because all the assets that had in fact come into the hands of the administratrix had already been absorbed in the payment of preferred debts, to which that of the plaintiff was of a subsequent class; and so the plaintiff had no just cause of complaint, and no legal or equitable ground of action.</p> <p>3. Because all the legal rights of the plaintiff were as effectually secured to him by the admission of the administratrix, as they could have been by a verdict and judgment. Hunt v. Whitney, 4 Mass. R. 620; Baxter v. Panniman, 8 Mass. R. 133; Emerson v. Thompson, 16 Mass. R. 428; Rev. St. c. 109, <§> 29.</p>

<p>Trespass quare clausum. The plainiiff, as part of his evidence, introduced the deed of Thomas M’Clure, On the argument of the case, it was contended as matter of fact, that this deed did not include the land whereon the trespass was committed, and that therefore the instructions of the Judge at the trial respecting the effect of that deed were erroneous. A plan was referred to, but was not among the papers of the case. The facts are stated in the opinion of the Court. The lop and top fence appeared to have been made by felling trees in such manner, that the top of one should be upon the lower end of another.</p> <p>The trial was before Shepley J. who instructed the jury, that such a fence across the westerly end of the Tilton lot, without a fence on the northern or southern side of the Hunter lot and so continued and maintained by the defendant, Hunter, as to inclose a tract of land not on any line or bound of his deed but without them, would not constitute a seizin in Hunter and disseizin of the grantors of Tilton, so as to defeat the operation of their deeds; and that this fence, as so built across the Tilton lot, would not operate a disseizin before the erection of the permanent fence from nine to thirteen years prior to that time; and that as Thomas M’Clure, the grantor of Tilton in 1832, was an heir and tenant in common, his deed would convey a seizin to the plaintiff, unless defeated by an adverse possession.</p> <p>The verdict being for the plaintiff, the defendants filed exceptions to the instructions of the Judge.</p> <p>and cited the following authorities. 9 Mass. R. 196; 2 Greenl. 367; 9 Mass. R. 185; 18 Maine R. 436 and 428; 2 Greenl. 287; 1 Greenl. 238; 11 Pick. 140.</p> <p>citing 4 Pick. 159; 5 Pick. 131; 5 Mass. R. 344; 8 Cranch, 249; 4 Mass. R. 416; 14 Pick. 383.</p>

Assumpsit upon a note given by the intestate, C. S. Curtis, to the plaintiffs, dated June 24, 1839, for $444,13, payable in seven months with interest. The estate of the intestate was rendered insolvent, and the note was laid before the commissioners by the plaintiffs, as their property.

<p>This Court has power under the revised statutes (o. 96, § 10) to hear and determine, as a court of equity, “ all suits to compel the specific performance of contracts in writing,” “ when the parties have not a plain and adequate remedy at law.” But under this provision the court must see not only that the contract is in writing, hut that it is in force as such. If merged in a judgment, it would no longer be a contract in writing within the purview of the statute.</p> <p>It should appear, also, that the plaintiif had not a plain and adequate remedy at law. If he has a judgment in his favor upon the contract in a court of law, he must be regarded as having there a plain and adequate remedy upon it.</p> <p>And if the contract be in reference to the personalty, and not to the realty, it is, with a few exceptions of a peculiar character, considered that a party has his appropriate remedy at law; and will not be entitled to the aid of a court of equity to enforce the performance of it.</p> <p>As a court of equity, with its limited equity powers, this court cannot aid a court of law to carry into effect a proceeding pending before it, or a judgment which it may have rendered.</p> <p>Where the parties to an action on a mortgage of real estate, pending in the District Court, made an agreement in writing to refer that action and also all other demands between them, including claims by each against the other for the payment of money, by rule of court, to the determination of three persons named, agreeing to perform their award; and the arbitrators, acting under the rule, made their award, that one party should convey to the other the mortgaged premises, on the performance of certain conditions, and that the other party should pay certain sums of money at certain times, and give certain security therefor, and that certain personal property should be divided between them; and this report, or award, was returned into court and there accepted; and the party to whom the conveyance was to be made brought his bill in equity, claiming a specific performance of the award; it was held, that the bill could not be sustained.</p>

This was an action on the case against the late sheriff of the County of Penobscot, for the neglect of Aaron Haynes, one of his deputies, in not keeping safely property attached on a writ in favor of the plaintiffs against Luther Dwinal and others.

This is an action upon the following obligation. “ Know all men by these presents, that I, Allen Fiske of Wayne, County of Kennebec, Stale of Maine, as principal, and Ezra Fiske and Moses Hubbard, do covenant and bind ourselves in the sum of three hundred dollars to K L. Lombard of said Wayne, to olear him from all liabilities, tax or assessment, that have or inay arise from said Lombard’s one share in the Scythe Factory in said Wayne.

This was an indictment, it would seem, under the twenty-sixth section of Rev. Stal. c. 154. The indictment is referred to in the bill of exceptions, but no copy is found in the papers, and the bill does not show the offence charged, further than may be implied from the requests for instruction, and the instructions given. The opinion of the Court gives all the material portions of the exceptions. '

<p>This was an action on a written guaranty of a promissory note signed by Charles D. Lemont, and payable to the plaintiff and A. Cooper, deceased, and dated Nov. 1841, for $358,20.</p> <p>A copy of the guaranty follows.</p> <p>“ I hereby guaranty the payment of a balance due on the note to J. N. & A. Cooper, dated Nov. 1, 1841, signed C. D. Lemont, within sixty days from the second day of May, 1843, balance due this day, $290,22. Rufus K. Page.”</p> <p>“ Rec’d fourteen dollars and for the guaranty. R. K. P.”</p> <p>The counsel for the defendant contended, 1st, that the paper called a guaranty, did not on the face, of it present a legal contract on which the plaintiff could recover. And 2d, that if he was legally entitled to recover, he was entitled to recover only the amount paid for the guaranty, being $14,64.</p> <p>These objections were overruled, and the jury were otherwise instructed.</p> <p>The defendant also contended that the guaranty was obtained by fraud. The testimony, on that point, was submitted to the jury, and a verdict was found for the plaintiff. In the consideration of the last point, the counsel for the defendant contended that there was no consideration for the note. It appeared to have been given on a settlement of account, and for a balance arising from freight of goods larger than the note, that balance being found against the said Lemont, who was master of a vessel partly owned by the plaintiff, and had signed a bill of lading -for the goods, which he did not deliver to the consignee according to the bill of lading; the charge being for the freight of the whole goods, which was not paid on account of the short delivery.</p> <p>The said Lemont was introduced as a witness and testified that the mate attended to the reception of the goods on board the vessel, and that he did not; that he signed the bill of lading according to the account of the mate; and that the goods were never in fact on board, or were removed by the mate without his knowledge before he sailed.</p> <p>The jury were instructed by Shepley J. presiding at the trial, that if the guaranty was not obtained by fraud, but fairly and without deception, the plaintiff would be entitled to recover.</p> <p>To which rulings and instructions the defendant excepted.</p> <p>citing 2 Hill, ] 39 ; Oxford Bank v. Haynes, 8 Pick. 429; Bayley on Bills, 577; 7 Wend. 569; 7 Louis. R. 377; Hill v. Buckminster, 5 Pick. 391; Cobb v. Little, 2 Greenl. 261.</p>

Exceptions from the Middle District Court, Redington J. \ presiding. This was an indictment against Dunlap for obtaining goods of one Carroll by false pretences. The facts appearing in the exceptions are found in the opinion of the Court, and also the instruction of the presiding Judge. The verdict was, that the respondent was guilty. contended that the instruction to the jury was erroneous; and cited 1 Wheeler’s Criminal Cases, 448; 2 Wheeler’s Cr.

Assumpsit upon an account annexed to the plaintiff’s writ. An account was duly filed in set-off. The accounts were submitted to an auditor, and the only information, as to the words in which the controverted claim was stated, appearing in the papers, was in the following extract from the auditor’s report. “ Wheeler charges Cowan rent for the Barrows farm.

This was a bill in equity, and was heard on bill, answer and proof. On July 6,1835, the plaintiff purchased of James Hall, the testator, his interest in one undivided eighth part of a tract of twelve thousand acres of land in the County of Washington, by virtue of a bond from the owners thereof, at four dollars and one eighth of a dollar per acre. Ha.ll had purchased one fourth of the same tract, on June 10, 1835, at the same price per acre.

This was an action of indebitatus assumpsit, on an account annexed. The account is for a bureau, $20, interest, $2,50, storage of the bureau, $2,50. The case was opened to the jury, and the plaintiff introduced a witness, who testified, that he had the care of the plaintiff’s furniture shop; that some day between 15th August and 10th Sep. 1841, the defendant came to the shop; examined several bureaus. The price of one was $22.

Writ of entry. The demanded premises were once the property of Jeremiah Potter, and both parties claimed under him. On March 27th, 1837, the demandants attached the land, entered their action, obtained judgment, and within thirty days thereafter levied their execution on the same.

The whole evidence at the trial before Tenney J. was reported, and the Court was authorized by the parties to draw such inferences therefrom as a jury would be authorized to do, and to render such judgment as the law would require, or make such other disposition thereof, as should preserve the legal rights of the parties.

Assumpsit for the support of Amelia Battles a pauper, alleged to have been an inhabitant of Turner and found in need of immediate relief in Augusta. The parties agreed upon a statement of facts, which are found at the commencement of the opinion of the Court.

Assumpsit upon a note made by the defendant to the plaintiff, dated Aug. 18, 1840, payable in one year with interest. At the trial, before Redingtqn, District Judge, the note was produced and read to tho jury. It had an indorsement thereon of $12,00, under date of March 22, 1842. The defendant set up the defence of payment, and brought forward and read another note given by him to the plaintiff of the same date and sum, but payable in six months, on which was no indorsement.

Case against the defendants for encumbering the land of the plaintiffs with their buildings, and for not removing the same. At the trial, before Redington, District Judge, it appeared that the defendants had conveyed to the plaintiffs a tract of land containing about forty-seven acres, describing it by metes and bounds, “ excepting and reserving all the buildings on said premises.” The buildings upon the land were a dwellinghouse, barn and shed.

Assumpsit bn a note of hand for $81, dated Jan. 1, 1838, payable to A. W. Hasey, Treasurer of the Bangor Methodist Chapel Corporation, or bearer, in one year from date, with interest, given by the defendant in part payment for a pew in that house. The note remained in the hands of Hasey until it was overdue.

Debt on a bond, given to procure the release of Dow from arrest upon execution in favor of the plaintiff against him, dated Sept. 9, 1841. The defendants pleaded performance; and contended that Dow had voluntarily been delivered into the custody of the keeper of the jail, and had gone into close confinement within the six months.

The District Judge, Redington, at the trial, instructed the jury, that if the defendants took the horse wrongfully, and delivered it to a person of their own selection, who knew that it was not their property, under the expectation, that he would not deliver it to the owner until its keeping was paid for by him, and the keeper, with the knowledge and consent of the defendants, sold the horse, the defendants had exposed themselves to pay the value of the horse to the…

This case came before the Court on the following statement. This action is assumpsit brought by the plaintiff as indorsee of a promissory note made by the defendants to one David Austin, and payable to him or his order in five months from date.

Replevin for a pair of steers. Writ dated Oct. 12, 1840. Plea, non cepit. Brief statement, that the property in the steers was in the defendant. At the trial, before Shepley J. the plaintiffs proved the taking of the steers by the defendant, and rested. The counsel for tbe defendant requested the presiding Judge to rule, that the plaintiffs must prove the property to be in themselves before they could sustain their action.

Exceptions from the Middle District Court, Redington J. presiding. The exceptions state that this was an indictment for uttering and passing counterfeit bills, purporting to be of the Augusta Bank, viz., three bills of three dollars each, and one bill of one dollar.

<p>This was a bill in equity, and was heard on a demurrer to the bill. The facts are sufficiently stated in the opinion of the Court.</p> <p>citing 11 Wheat. 199; 8 Wheat. 299 ; 5 Law Reporter, 309; 1 Mass. R. 282 ; 1 Burr. 436 ; 1 P. Wms. 244; 7 Ves. 249 ; 1 Story’s Eq. 14, 15, 68, 69, 70, 72 ; 2 Story’s Eq. 735 ; 2 Ves. 145 ; Story’s Eq. PI. 62, 64.</p> <p>citing 2 Kent, 162, 163.</p>

Exceptions from the Middle District Court, Redington J. presiding. Assumpsit against Albert Lyford, Joseph Marston and Enos Foster. The plaintiff proved that he rendered professional services to the amount of the services and disbursements charged, in defence of a suit in favor of Jewett, on a note given by Lyford, as principal, and the other defendants as his sureties, in the District and S. J. Court from 1839 to 1842, he being the only counsel in defence.

A road was laid out by the County Commissioners of the County of Somerset, passing over land of Woodman and French, the petitioners, in the town of Phillips, then in the County of Somerset. The petitioners were dissatisfied with their damages, and on their application a jury was ordered in October, 1836, and their damages were increased. On March 20, 1838, the County of Franklin was established, and the town of Phillips was included in that County.

Bill in equity. Ireland mortgaged certain lands to Abbott, on March 1, 1824, to secure the payment of three notes, the last payment to be made on Jan. 1, 1826.

<p>When an officer has a precept wherein he-is commanded to arrest the body of an individual, he has the right to select such particular time of day as he thinks most expedient, under the circumstances, and is authorized to make use of so much force as is necessary to accomplish the object.</p> <p>Where an officer has arrested a debtor on an execution, and committed him to prison, and returned several items of fees for his services, some of which are legal, and some illegal; and the debtor brings an action against the officer, alleging generally, that by reason of such illegal fees, he was detained in prison longer, than he otherwise would have been, but does not show that he has either paid, or offered to pay the debt, or the legal fees, but was discharged by taking the poor debtor’s oath, such action cannot be maintained.</p> <p>In an action against an officer for a false return, made by mistake, in certifying that he had left with the plaintiff a true copy of a notice to appear and submit to an examination, &c. that he might thereby prevent the issuing of an execution against his body, (under the poor debtor act of 1831,) when in fact there was an error in the copy; and the mistake was known to the present plaintiff in season to have avoided any inconvenience thereby, at a trifling expense ; it was held, that the plaintiff was entitled to recover only such sum as would have fully paid him for ascertaining the truth, and not damages for the injury sustained by him in being arrested and imprisoned on the execution.</p>

Debt on a bond, dated July 3, 1841, given to procure the release of the principals from arrest on an execution in favor of the plaintiff against them. The material parts of the bond, and the facts in the case, appear in the opinion of the Court. contended that the justices who undertook to administer the oath were not constituted according to the law in force at the time, and therefore that all their acts were void.

Petition for a review of an action brought by Oliver L. Currier, as Division Advocate, of the eighth division, against Samuel Parker, formerly captain of a company of militia, within the Division, on a judgment of a Court Martial, held in June, 1840, to recover a penalty of forty dollars imposed upon Parker for neglect of duty and disobedience of orders.

Excf.ptions from the Middle District Court, Redington J. presiding.

<p>A guaranty of payment of a pro-existing promissory note, where the only consideration is a past benefit or favor conferred, and without any design or expectation of remuneration, is without valuable consideration, and cannot be enforced.</p>

Exceptions from the Middle District Court, Redington J, presiding. Debt upon a recognizance. The defendant pleaded nul tiel record, and filed a brief statement, in which one objection was this. That it does not appear from the recognizance, that the justice who took the same had jurisdiction of the cause in which said recognizance was taken.

Case against the defendant, as late sheriff of this county, for the default of a deputy in omitting to collect and return an execution in favor of the plaintiff against one Raymond. ■ The execution was delivered to the deputy, who collected about one half of it by sale of the personal property of the debtor, and paid it over to the plaintiff. He then arrested the body of the debtor, who gave a poor debtor’s bond, and was released.

Whit of entev. The demandants are the heirs at law of the late II. W. Fuller of Augusta. They claim title to the land demanded, situated in the Comity of Somerset, under a quitclaim deed from Warren Preston to the intestate.

<p>A certificate of two justices of the peace and of the quorum, showing that the creditor had been duly notified, and that the debtor had taken the oath prescribed by the statute for the relief of poor debtors, may be amended by them after it has once been signed, by stating by whom they were selected as justices.</p> <p>The mere fact that a justice of the peace and of the quorum has issued a citation to the creditor, does not disqualify him from acting in the same case in the examination of the debtor.</p> <p>When the justices have been selected according to the provisions of the statute and have entered upon the performance of their duties, preparatory to the examination of the debtor, neither party can interrupt the performance of them by denying, or attempting to revoke, the authority of one of the justices, without the consent of the parties interested.</p> <p>Where the official certificate of two justices of the peace and of the quorum, of their doings in the examination of a poor debtor, had been introduced in evidence, and both justices had been examined as witnesses at the trial, and their testimony in relation to facts, stated in the certificate, was conflicting, it is admissible as evidence tending to corroborate the statement of one of them.</p> <p>Remarks which do not state any rule or principle of law, made by the presiding Judge at a trial, upon the testimony, are not the proper subject for consideration for the whole Court.</p>

Exceptions from the Eastern District Court, Allen J. presiding. At the trial, the plaintiff offered in evidence the paper marked A. It was excluded by the presiding Judge. The plaintiff then read in evidence the paper marked B, and proved that the papers marked A and B were seen wafered together two or three weeks after the date of the latter; and then offered again the paper A, and it was again rejected.

The following is a copy of the errors assigned: — 1st. That it appears by the record aforesaid that judgment was given for the said John Gilman, whereas by law it ought to have been given in favor of said inhabitants against said Gilman. 2d. That the plaintiff did not prove the assignment of the limits of said company by the assessors or selectmen of Brown-ville and Williamsburg, or that the limits of said company were assigned by the selectmen or assessors of either town,…

Debt upon a bond, dated July 11, 1842, given by the defendants to the plaintiffs to procure the discharge of the principals from arrest on an execution in favor of the plaintiffs against them. The condition of this bond is recited at the commencement of the opinion of the Court. On August 27, 1842, the oath prescribed by the Revised Statutes was administered to the debtors by two justices of the peace, of whom one was commissioned as of the quorum, but the other was not.

<p>Trover, for a quantity of pine logs. The whole evidence given at the trial, the objections raised to the right of the plaintiff to recover, and the ruling and instructions of the presiding Judge, all appear in the exceptions. The law of the case, on the view taken by the Court, will be understood, without any more particular statement of the facts, than will be found in the instructions to the jury, and in the opinion of the Court,</p> <p>By the agreement between the plaintiff and Jcfferds, assuming to be the agent of the proprietors, the plaintiff was to cut a large quantity of pine timber, on a township of land, and drive it to the boom near Oldtown, in a certain manner, and if he neglected, he would “ pay the proprietors, should they drive for him.” The agreement provides, that the plaintiff should be paid $3,50 per thousand, board measure, for cutting, hauling and driving the logs, “ to be estimated by said Pond and cut to his satisfaction, and to be scaled at the landing on said township, where the logs are deposited.” The agreement contains this stipulation : — “ The said Jcfferds further agrees, that the said Oakes shall receive one third part pay for hauling and driving on the delivery of said logs at the Pea Cove Boom, one third in thirty days, and one third in sixty days, said logs to be holden to said Oakes until all is paid, or satisfactory security given” By the contract between Moore, as agent for the proprietors, and Paine, the latter was to take the logs from the boom, saw them, and run the boards to Bangor.</p> <p>The bill of exceptions concludes as follows: —</p> <p>The defendants’ counsel insisted, that the written contract between Moore and Paine, and the delivery of the logs in pursuance of its provisions by the plaintiff, deprived Moore of the possession of the logs, and was such as to prevent him from resuming it; and therefore this action could not be maintained; but if otherwise, yet the refusal of Moore to deliver the logs on demand of the plaintiff, would not make Wilcox, the other defendant, liable, unless he gave direction to Moore to refuse to deliver them; and that every alteration in the contract, under which the plaintiff cut and hauled the logs, was a waiver on his part of his lien.</p> <p>Tenney J. presiding at the trial, instructed the jury, that the plaintiff must have had the possession of the property, or the right of immediate possession, in order to maintain this action. That the contract between Moore and Paine, if the plaintiff delivered the lumber to Paine in pursuance of its provisions, did not give Paine the control of the logs against Moore, although, if Moore took them, he might be liable, to the extent of the price of sawing them, to Paine. That so far as Moore had the lumber under his control, unless the lien was waived, his refusal to deliver them on the plaintiff’s demand was evidence of a conversion by him, but that refusal was insufficient to render his principal liable, unless the principal directed or in some way sanctioned it; but that notice to the agent of the claim and demand was a notice to and a demand of the principal, and if after the refusal of the agent the principal made use of the logs, it was a conversion by the latter. That the plaintiff’s lien would be annulled by an express agreement to that effect, or by any agreement which would be inconsistent with that which created it, so far as the lien was concerned; but a modification which was intended to produce the money, with which to pay the plaintiff, and which modification had no reference to the lien, and was not inconsistent with its continuance, would not discharge it. That the question of the waiver of the lien was to be determined by ascertaining the intention of the parties. That if the plaintiff agreed that the lumber should be sold unconditionally, and he to receive the proceeds so far as the lumber was sold in pursuance of such agreement. the lien would bo discharged and the defendants would not be guilty of a con-version of the lumber so sold. But if it w'ere intended by the parties, that the lumber unsold should continue charged with the lien, a refusal to deliver such on demand was evidence of a conversion in the one who refused ; but there would be a liability no farther than the value of such lumber unsold. That the survey of Pond was conclusive, unless the jury were satisfied that he was guilty of fraud in the survey, or unless lie acted under a misapprehension of a material fact, such for example as estimating lumber which grew on another tract. That an error in judgment in estimating the timber, or determining whether the timber came within the terms of the contract, could not be corrected by the jury. The defendants’ counsel requested the presiding Judge to instruct the jury, that if they believed that Oakes and Moore made the contract according to the testimony of Ivory Jefferds, the plain-* tiff could not recover. The Judge declined doing this, but instructed them, that if, from all the testimony in the case touching that question, they were satisfied, that it was the intention of the parties, that the lien should be waived, or that any agreement was made inconsistent with its continuance, they would find for the defendants. The jury returned a verdict for the plaintiff, and the defendants filed exceptions to the instructions given by the Judge.</p> <p>In support of their position, that the lien of the plaintiff was dissolved by a voluntary surrender of the logs, and delivery of them over into the possession of the owners, or their agents, they cited 6 East, 27; 15 Mass. R. 396; 12 Pick. 81 ; 4 Campb. 291 ; 14 East, 308 ; 1 Atk. 234; 7 Taunt. 14. That Paine had a right to retain possession of the logs until his contract was fulfilled. Townsend v. Newell, 14 Pick. 332; 2 Kent, 586; Story on Bailm. <§, 394,393,424 ; 8 Verm. R. 302; 8 Pick. 75. That the action of trover could not be maintained, as Paine had the right to the possession under his contract, when the action was commenced. 3 Greenl. 183; 13 Pick. 294; 3 Pick 258; 7 T. it. 9; 9 Pick. 156; 22 Pick. 535.</p> <p>On the point, that the instruction requested was rightfully refused, because it was predicated on the testimony of one witness, assuming it to be true, when it was in conflict with other evidence, and when the story was in itself improbable, they cited 17 Peters, 20. The objections made by the defendants to the instructions, they contended, were grounded on a misconception of what the instructions were. The argument assumes that the plaintiff assented to the contract between Moore and Paine, when the jury have found, under the instructions, that he did not. The possession of Paine was the possession of the plaintiff, and not of the proprietors of the land. The principal is liable to third persons for the acts of his agent, in a civil action. Story’s Ag. § 451, 452; 7 Bingh. 543; 1 Moore &. P. 448. And notice to the agent is constructive notice to the principal. Story’s Ag. § 140.</p>

The action was trover, brought by Micajah Haskell, Francis Lecompte and H. A. Warren against Jones, a deputy sheriff, who had attached the property, alleged to have been converted by him, on a writ against W. D. Lecompte and Asa Porter in favor of one of their creditors. The facts are stated in the opinion of the Court.

This was scire facias, against the defendants, Messrs. Wash-burn & Prentiss, as indorsers of a writ in favor of William Irving against the present plaintiff. The plaintiff relied upon a judgment in his favor in said action; execution issued on the same, with the officer’s return; and the certificate of two justices of the peace and quorum, admitting the execution debtor to the benefit of the poor debtor’s oath.

After all the evidence, which appears at length in the report of the case, was before the jury, the defendant became defaulted. If upon the evidence the action could be supported, in the opinion of the Court, the default was to stand; and if not maintainable, the default was to be taken off, and the plaintiff become nonsuit.

<p>If all the facts alleged in an indictment may be true, and yet constitute no offence, the indictment is insufficient. And a verdict does nothing more than to verify the facts charged.</p> <p>Where an offence is created by statute, and there is an exception in the enacting clause, the indictment must negative the exceptions. But if there be a proviso which furnishes matter of excuse to the party, it need not be negatived in the indictment, but he must show it, if he would avail himself of it.</p> <p>Where certain persons were authorized by an act of the legislature to erect a dam across a river which had by prescription become a public highway, in a certain manner, and within prescribed limits, and they had proceeded to erect a dam across the river, at or near the same place; and an indictment at common law was found against them for causing a nuisance by the erection of the dam; such indictment is insufficient, and on the return of a verdict of guilty thereupon, judgment must be arrested, if the indictment contains no averment that the dam was beyond the limits prescribed in the charter, and does not in any way allege, that it was not erected in pursuance of the authority given by the statute.</p>

<p>Assumpsit for money had; and received, and money paid, laid out and expended.</p>

This action was case against the defendant as indorser of a writ of replevin, in a suit brought by Joel Hills of Bangor, and William McLellan of Boston, against the plaintiff, on Jan. 8, 1838. That replevin suit was filially tried, and judgment rendered in favor of Merrill, at the October term of this Court, 1841, for a return of the property replevied, and for a bill of costs.

This was an action of trespass quare clausum. The trespass was alleged to have been committed on August 4 and 5, 1840. During the trial, the plaintiff moved for leave to amend his declaration by adding a new count, alleging the same trespass to have been committed on July 17, 1840. This was objected to by the defendant, but permitted by the Judge, and made.

<p>Assumpsit upon receipts for goods attached by the plaintiff, . then a deputy sheriff, as the property of Samuel A. Gilman, in suits, Henry Rice against him.</p> <p>There were two distinct suits, tried at different times, when different Judges were presiding, but the questions of law embraced in one case included all that were raised in the other. Only one of the cases will therefore be mentioned hereafter.</p> <p>The plaintiff proved an attachment of the property in the suit, Rice v. Samuel A. Gilman, receipt therefor signed by him and by the other defendant, a judgment in favor of the plaintiff, issuing of an execution, delivery of the same to an officer, and demand of the property within thirty days after judgment, and refusal to deliver it.</p> <p>The defendants then introduced in evidence a certificate of the discharge of Samuel A. Gilman in bankruptcy, under the laws of the United States, obtained long since the pendency of this suit. The plaintiff' moved for leave to discontinue against Samuel A. Gilman, which was permitted, and the discontinuance entered. Gilman moved that his costs should be allowed him. The decision of this question was reserved for the consideration of the whole Court. .</p> <p>The defendants then offered in evidence the record of the judgment in an action, Henry Rice v. Daniel Wilkins, late sheriff of the county, for the default of the plaintiff, his deputy, in not safely keeping the property attached and receipted for by the defendants, wherein the verdict was that Wilkins was not guilty.</p> <p>The plaintiff then called J. Cutting, Esq. one of the counsel in that suit, and put to him the following interrogatory. Was the defence in the case, Rice v. Wilkins, placed by his counsel on the ground, that Farnham in taking the receipt had acted under the direction of Rice, or of his attorneys ? This question was objected to by the defendants, but Tenney J. presiding at the trial, permitted it to be answered. The answer was, I think that was the ground of the defence, and that he took the receipt by direction of said Rice’s counsel, and that after the taking of it, his doings were ratified by the attorney of the plaintiff. This question was one of the prominent points presented in the defence. The plaintiff, in that case, claimed that the receipt had been taken without his consent, and that the officer was responsible for so taking it. M. L. Appleton testified, that the present suit was brought by him by direction of Farnham, the witness supposing that Farnham was liable for the execution, Rice v. Gilman; that the receipt was not taken by his direction or consent, nor, as far as he knew, by the direction or assent of his deceased partner, Mr. Starrett; and that as Rice failed in the action against Wilkins, this suit was now prosecuted for his benefit.</p> <p>The defendants proved, that the goods were never removed from the possession of S. A. Gilman, the debtor, and were disposed of by him before the demand.</p> <p>The plaintiff then offered in evidence the report of the Judge, presenting the question of law, in the case, Mice v. Wilkins. Its admission was objected to by the defendants, and excluded by the Judge.</p> <p>The judgment and execution were referred to in the report of the Judge, but no copies appear in the case. It was, however, contended at the argument, that the demand on one of the receipts was void, because the execution on which the demand was made, was issued for an amount greater than that to which the creditor was entitled. The facts relative to it are stated in the opinion of the Court.</p> <p>The consideration of the case was then taken from the jury, and submitted to the decision of the Court upon the evidence, or such of it as was legally admissible; and the Court were authorized to draw inferences, and enter the proper judgment by nonsuit or default.</p>

This action was submitted for the decision of the Court upon the facts stated in the deposition of Cornelius Bedlow, jr. formerly cashier of the bank, with the paper-annexed thereto; and the Court was authorized to order a nonsuit or default to carry the decision into effect. The substance of the contents of the deposition appear in- the opinion of the Court. 1.

This action Was submitted to the decision of the Court upon the facts stated in the deposition of Cornelius Bedlow, jr. the former cashier of the bank. The facts appear in the opinion. The counsel submitted the case, upon the arguments in the action, in favor of the same plaintiffs against Burr & al. ante, p. 256.

This action was against Henry K. Robinson and Putnam Wilson, and was, like the two preceding, submitted by the parties to the decision of the Court upon the facts stated in the deposition of… Held: and managed. 4. The bank has adopted and acted upon the arrangement of its directors with the defendants; and the whole transaction originating and ending in fraud on the part of the plaintiffs, they cannot recover.

Assumpsit on a note of the following tenor: — “Bangor, June 15, 1836. For value received, we promise to pay Silas Sears two hundred and thirty-three dollars and ninety-six cents, from the avails of the logs bought of Martin Mower, when there is a sale made. $233,98. Winslow Wright & Co.” The action was commenced on June 24, 1841.

Assumpsit for supplies furnished one Nancy Johnson, a pauper, whose settlement was alleged to have been in Brewer. The only question was, in which of these towns was the lawful settlement of the pauper. Nancy Johnson was the legitimate child of Ephraim Johnson, and was born on August 28, 1817. On Sept. 30, 1834, the legal settlement of Nancy Johnson and Ephraim Johnson, was in Brewer, and on that day they removed to Hampden, and the said Ephraim has ever since resided there.

Writ of entry, demanding a tract of land in Hermon, in this county, with a dwellinghouse and barn standing thereon. At the trial, before Whitman C. J. the demandant proved a title in himself, prior to April 25, 1838, and was to have judgment, unless the title under a collector’s sale for the payment of taxes thereon for 1837, made on April 25, 1838, under which the tenant claimed, should prove valid and legal.

The substance of what was contained in the bill of exceptions will be found in the opinion of the Court. On their point, that nothing passed by the parol sale of the logs, there being, as they alleged, no delivery, they cited 1 C. & P. 372.

<p>Assumpsit upon a note of hand made by the defendant, on the 29th day of November, 1834, for $288,88, payable to John A. French, or order, in three years from date, with interest annually; and by him indorsed to Thomas Jenness, and by him to the plaintiff; in each case without recourse. On April 8, 1836, an indorsement of $135,50, was made. It was in proof that the note was indorsed after it became due. Thomas Jenness testified, that the defendant promised to pay the note after it was indorsed to him, and before it was sued; and after it was sued he offered to pay as much as it would cost him to defend the action. The defendant introduced proof that John A. French, the payee of the note, on November 17, 1834, made his deed of mortgage of a certain lot of land containing 121 acres, situated in Bangor, to secure the payment of four notes of hand, amounting in the whole to $1784,84, with interest, to Asa Davis, which was duly recorded the next day. He also introduced proof, that John A. French, on the 29th day of November, 1834, conveyed to him one undivided’ moiety of the land he had mortgaged to Asa Davis, with the usual covenants of warranty, for the consideration of $1155,55 ; and that the note in suit was given for a part of said consideration.</p> <p>The defendant introduced proof tending to show, that the amount due on the mortgage of John A. French to Asa Davis, from the time it was given until its foreclosure, exceeded the value of the mortgaged premises. It was proved, that Asa Davis gave notice of his intention to foreclose said mortgage in the Bangor Courier, three weeks successively, and caused said notice to be recorded in the Registry of Deeds of this county on the 30th October, 1838.</p> <p>The plaintiff proved, that John A. French and the defendant, on the 8th of April, 1836, conveyed to Philip H. Coombs a portion of the land so mortgaged, by deed with the usual covenants of warranty, for the consideration of $1142. Asa Davis, in answer to the inquiry of the plaintiff’s counsel, stated that he contracted to sell the lot for $18 per acre, before he sold it to John A. French; that he received $500, from the original contractor, who had taken that value of lumber from the land, and then by consent sold the land to French for $1784,84; that about two years after the purchase, he was requested by the defendant to survey a quantity of wood, about 350 cords, cut from about 15 acres of the land, which was mostly soft wood; that he did not know that the defendant had any part of the wood; that he did not go with him; that he charged the survey to French; that the amount of the wood, hard and soft, upon the acre was thirty cords, on fifty acres of it; and that two fifths of it was hard wood.</p> <p>If the Court, upon the whole of the facts, (all which are above stated,) are of opinion, that the action is maintained, the defendant is to be defaulted; otherwise the plaintiff shall become nonsuit.</p> <p>considered the law to be settled, that a partial failure of title to land conveyed by deed of warranty, constituted no defence to a note given for the consideration. Homes v. Smyth, 16 Maine R. 177; Went-worth v. Goodwin, 21 Maine R. 150.</p> <p>Even a total failure of title has been decided in this State to furnish no defence to a note given for the consideration money. Lloyd v. Jewell, 1 Greenl. 352.</p> <p>Here the purchaser acquired at least an equity of redemption, and a valuable one; and received the rents and profits for several years, for which he cannot be compelled to account to any one. In no case has it been decided, that a mere incumbrance upon land conveyed by deed of warranty, furnishes a defence, wholly or partially, to a note given for the consideration of the purchase.</p> <p>This action was brought upon a note of hand, by the indorsee against the maker. The note was indorsed after it became due, and therefore the same defence may be made, that might have been, if the action had been brought in the name of the payee.</p> <p>The defence offered is a total failure of consideration. The note was given for land purchased of John A. French, which, at the time of the conveyance was under a mortgage, made by said French to Asa Davis, to an amount exceeding the whole value of the land; which mortgage has been foreclosed, without any fault on the part of the defendant.</p> <p>The case finds, that the amount secured by the mortgage of French to Davis was near $1800, and that the consideration paid far a moiety of the land by the defendant, was about $1150. To remove the incumbrance the defendant would have been compelled to pay off the mortgage to Davis, a bur-, den he was under no legal obligation to assume, and to take an assignment of the mortgage, which was not worth the amount due thereon, or look to the uncertain remedy against French upon his covenants, If the suit had been brought by French, the. defendant might have brought a cross action upon the covenants and offset one judgment against the other, The leaning of the Courts, at present, is to avoid circuity of action and do justice directly between the parties. McAllister v„ Rejb, 4 Wendell, 490.</p> <p>There was an entire failure of consideration for the note, notwithstanding the covenants in the deed.</p> <p>The conveyance of French to Davis was absolute in its terms, subject however to be defeated by the payment of the notes. The notes not being paid, the mortgage was foreclosed ; and thus an entire failure of consideration occurred. That this is a good defence, hardly admits of question. Knapp v. Lee, 3 Pick. 452; Bayley on Bills, 340, and notes. The covenants in the deed make no difference. Rice v. Goddard, 14 Pick. 293 ; Dickinson v. Hall, Ibid. 217 ; Trask v. Vinton, 20 Pick, 110; Frisbie v. Hofnagle, 11 Johns. R. 50; 13 Johns. R. 54 ; Tillotson v. Grapes, 4 N. H. R. 448; Chandler v. Mapsh, 3 Vermont R. 162; Lawrence v. Stoninglon Bank, 6 Conn. R, 521; 1 Sargent and Rawle, 447; 5 Binney, 232; 1 Bay, 278; lb. 327 ; Homes v. Smyth, 16 Maine R. 177.</p> <p>The only authority opposed to this position is that of Lloyd v. Jewell, 1 Greenl. 352. This was a case of partial failure of consideration, and, therefore, what was said by the Judge was not necessary in that case. But admitting it to be entitled tp all the authority justly due to the Court, it is certainly con» trary to tho uniform current of authorities in a large number of the States, and has been overruled in more recent decisions, gee Hice v. Goddard, Dickinson v. Ilall, and Trask v. Vinton, above cited.</p> <p>The conveyance of part of the land to Coombs, does not aifect the case. The defendant is liable to him on his covenants to the full extent of the purchase money. And even, if the defendant had cut wood from the land, of which there is no sufficient evidence, he would be liable in trespass to Davis for its value. Stowell v. Pike, 2 Greenl. 387 ; Knapp v. Lee, before cited. But. even if he had derived any benefit from the purchase, it does not appear to have exceeded the amount indorsed on the note. Dyer v. limner, 22 Pick, 260; Durnell v. Williams, 2 Stark, 166; Spaulding v. Vandercook, 2 Wendell, 431.</p> <p>The promise to pay tho note, if it was without any new consideration, was void. Warder v. Tucker, 7 Mass. R. 449; Garland v. Salem Bank, 9 Mass. R. 408.</p>

Bill in equity. The plaintiff in equity, under the belief that the mortgage had been extinguished, conveyed the premises to one Elder, by a common deed of warranty.

The first of these actions was originally commenced by Silas Pierce & Co. in the name of the treasurer of the State against Wilkins, late sheriff of the county of Penobscot, and against his sureties, for neglect of official duty in one of his deputies. Additional declarations were afterwards filed in that suit by Dinsmore & ah, by Homes & ah, by Harriman and by Pratt, for injuries alleged by them to have been respectively sustained by other defaults of deputies of Wilkins.

This was an action of audita querela. The fácts appear at the commencement of the opinion of the Court. said that although this was an unusual action, yet it was expressly given by statute, which regulated the process and gave the form. St. 1821, c. 63, 7; Rev. St. c. 141. If judgment has been rendered, but an execution has improperly issued, and been executed upon the property of the debtor, this is the appropriate remedy. Johnson v. Harvey, 4 Mass.

<p>In a writ of entry, where the tenant pleads that he was not tenant of the freehold, but merely tenant at will to another who had the title, the demandant may, since the Revised Statutes were in force, (c. 145, § 10) elect to consider the person so in possession a disseizor, for the purpose of trying the right, if he has actually ousted the demandant, or withheld from him the possession of the premises; and the demandant may prevail if his title he paramount to that of him under whom the tenant in possession holds.</p> <p>Where a levy is made upon an undivided share of certain real estate, in order that such levy should be supported against any one but the debtor and those claiming under him, it should not appear, that he was tenant in common of a larger tract, including the premises levied upon ; nor otherwise than that he was the owner of an undivided portion of that particular parcel, or that, owning the whole of that parcel, in severalty, the levy could not be made thereon of a particular portion, setting it out by metes and bounds, without damage to the estate.</p>

Writ of entry. After the whole testimony was before the jury, it was all reported, and thereupon a nonsuit was entered by consent, to be set aside, if in the opinion of the Court the action could be maintained.

This was an action of assumpsit to recover of the defendant payment for work done on the schooner Respect in 1840. The plaintiffs introduced their books in which “ schooner Respect” is charged for the work.

Exceptions from the Eastern District Court, Allen J. presiding. Trover to recover the value of a quantity of hay alleged to have been taken and converted by the defendant.

<p>If the bill, as presented, does not exhibit a case for the interference of a court of equity, it may be dismissed on demurrer for want of equity.</p> <p>In a bill in equity brought by two partners against the third and against an officer who had taken goods alleged to belong to the partnership on a demand against the defendant partner for'his individual debt, the partnership creditors not being made parties, where the. object sought was merely to obtain a decision that the goods were owned by the partnership, without acting in any other manner upon the rights or interests of the partnership or of its members, or upon those of the creditors of the partnership, or of one or more of them, the Court will not require the officer to deliver over the goods, or the proceeds of the sales thereof, to the plaintiff partners, but will withhold.its aid until there can be a distribution of the whole partnership property, first among the partnership creditors, and then among the partners themselves, or their representatives.</p> <p>Jurisdiction is not given to this Court as a court of equity, by the Rev. St. c. 96, § 10, in all cases where a partnership or partners may be interested; but was conferred to provide a remedy in certain cases for persons, or the representatives of their interests, who were, or had been, partners with other persons, and who on that account had either no remedy, or an imperfect one, by the common law.</p> <p>That is not a case of partnership within the equity jurisdiction of this Court, where the bill alleges that one, not a partner or representing a partner’s interest, has taken goods belonging to the partnership, which goods such person denies to be partnership property.</p> <p>And if one partner is omitted as plaintiff, and made a party defendant with such other person, still the Court will not have equity j urisdiction as it respects the latter.</p>

<p>To render tile indorser of a writ liable for costs recovered, the inability or avoidance of the original plaintiff should bo shown by an officer’s return thereof on an execution for costs, issued within one year from the time the judgment was rendered.</p>

In this case, after the evidence was before .the jury, the defendant consented to be defaulted, which default was to be taken off, if upon a report of the evidence the action could not be maintained. The facts proved are concisely stated at the commencement of the opinion of the Court. contended, that the widow is dowable of an equity of redemption, of which her husband died seized, against all but the mortgagee, or his assignee.

Two actions were brought against the town of Greenbush, in the name of John Ballard on town orders, one for the benefit of It. Hutchinson, and the other for the benefit of A. Lang. The orders were of a similar character, and the same principles were involved in the decision in each case. They were therefore treated by the Court as but one.

<p>Trover for twenty-five boxes containing one hundred and fifty clocks.</p> <p>This case was opened to the jury, and taken from them by consent of parties, after the evidence was out, and submitted upon the evidence to the decision of the Court. If the action was not maintainable, the plaintiff was to become nonsuit; and if it was, tbe defendant was to be defaulted, and the damages were to be assessed by the Court upon principles of law.</p> <p>The facts shown by the evidence appear in the opinion of the Court. The bill of lading referred to was dated Dec. 4, 1841, and recited that there were “ shipped in good order and condition by G. TT. Chapin, on board the good schooner called the Mirror, whereof Elias Haskell is master for this present voyage, now lying in the port of Boston and bound for Bangor;” the clocks in question and other articles, “to be delivered in like good order and condition at the aforesaid port of Bangor, the danger of the seas only excepted, unto H. Hunt or to assigns, he or they paying freight for said goods at 8 cents per foot and Boston wharfage, without primage or average, and expenses, sixty-seven dollars.” This was signed by the defendant.</p> <p>said that the bill of lading shew, that the goods belonged to the plaintiff, and that the defendant engaged to deliver the same at Bangor. The case shows, that the articles were not delivered at Bangor, but sold at Frankfort by the defendant. To constitute a defence, he must show, that the freight was due, and that the law gave him the right, by his own authority, to sell the plaintiff’s goods at auction for the payment of the freight.</p> <p>The freight has never been earned, .as the goods were never delivered at the place appointed, and no cause appearing to prevent it. If the defendant was under the necessity of carrying them a few miles upon the ice, it was no more than he should have expected, when he made the contract. He is not entitled to have freight pro rata itineris. 7-T. R. 381; 10 East, 378 and 526 ; 2 Campb. 466 ; 1 Dodson, 217; 1 Peters Adm. R. 123 ; 9 Johns. R. 186 ; 6 Cowen, 504 ; 3 Binn. 437; 7 Cranch, 388; 12 Wheat. 383; 5 Mass. R. 252; 6 Mass. R. 422; 3 Pick. 20.</p> <p>But if the defendant was entitled to freight, he has no right to sell the property for the payment thereof.</p> <p>The true measure of damages, it is believed, is the value of the property at the time of the conversion. But if this be not correct, then the plaintiff should be fully compensated for his expenses and trouble in obtaining his goods. Greenfield Bank v. Leavitt, 17 Pick. 1.</p> <p>contended that the defendant had a lien upon the property for the payment of the freight as a common carrier; and a lien, also, as factor or agent of the plaintiff, for the amount paid for him at Boston. Story’s Ag. <§> 373, 382; Jeremy’s Law of Carriers, 74. The defendant therefore should be regarded both as a common carrier, and as a factor or agent.</p> <p>The defendant had the power to make the sale as a common carrier. The lien clearly exists, and this is not contested. The one adopted by the defendant is the only mode of making the lien of any value, the equity powers of this Court not extending to a case like this, unless, perhaps, going into the admiralty court of the United States, an inconvenient and expensive remedy at best. To deny this right of sale, would be virtually a denial of any benefit from an acknowledged lien. The necessity of the case is sufficient to sanction this course. Chandler v. jBelden, 18 Johns. R. 157.</p> <p>He has a power to sell as factor or agent. 14 Peters, 479; 2 Kent, 642.</p> <p>The defendant is entitled to freight on the goods pro rata itineris. for several reasons. The goods were to be carried in a vessel by water to Bangor; and if the plaintiff does not choose to accept the articles at Frankfort, the defendant had until spriqg to deliver the goods; the plaintiff accepted and received a part of the goods at Frankfort; and the tender made by the plaintiff was an admission of an existing debt, and so a waiver of delivery at Bangor.</p> <p>If the plaintiff is entitled to damages, the amount should be merely the loss actually sustained. He has received all his goods, and ought not to recover of the defendant, in any view of the case, but the five-dollars he paid to his agent who bid them off for him, and the auctioneer’s fees. Esp. N. P. 567 ; 2 Saund. PI. & Ev. 420.</p>

Assumpsit for $1000, money had and received.. Specification, $472,92, and interest since Sept. 2(>, 1837. Writ dated Dec. 15, 1841.

Exceptions from the Eastern District Court, Allen J. presiding. Assumpsit for labor and materials expended by the plaintiff in repairing the school house in District No. 2, in Bradford. The materials and labor were necessary to render the school house fit to beep the school in, then about to commence. Prior to incurring the expenses, a meeting of the school district was held on Oct. 27, 1838.

Trespass against the late sheriff of this county for the acts of one of his deputies. The facts in the case, and the grounds taken in defence, appear in the opinion of the Court. cited st. 1835, c. 178, § l, respecting trespass and case ; Bradley v. Davis, 14 Maine R. 44; 6 Bac. Abr. 561.

This was a writ of scire facias, dated Feb. 9, 1843, against tho defendants as indorsers of a writ in favor of one Gipson against the present plaintiff, sued out Sept. 18, 1837.

Debt on a bond, dated Nov. 2, 1841, given by Herbert as principal and French as surety, to procure the release of Herbert from arrest upon a writ in favor of the plaintiff against him. All the facts appearing in the agreed statement of the parties will be found in the opinion of the Court, and therefore need not be here again stated. Written arguments were furnished on May 2, 1845, by Among the grounds of argument in support of the action were these.

Assumpsit upon a note of which the following is a copy. “For value received I promise to Thomas O. Parkman, or bearer, sixty dollars, to be paid in one year from date with interest. “ David Davis. “Garland, May 6, 1841.” r On the back of the note was indorsed, “ Thomas O. Parkman” and “ Whitcomb Fairbanks with course.” A statement of facts was made by the parties by giving the testimony of several witnesses, they agreeing, that the action should “ stand for trial, if in the…

<p>Assumpsit upon a note. The parties put down the testimony of witnesses, and referred to depositions, letters and an' order, as if the same had been introduced in evidence on a trial; and thereupon submitted the case to the decision of the Court. The facts, considered by the Court to be proved by the evidence, appear in the opinion.</p> <p>The views taken of it by the counsel will be found in the 'arguments.</p> <p>This action is against the defendants, as joint promisors, not as partners.</p> <p>1st. Then, as to the contract declared on. It is within the statute of frauds and void, because, “ no note or memorandum, in writing, of the bargain, was ever made and signed by the defendants or their agent.” Rev. St. c. 136, <§> 4.</p> <p>If the letters of Clark, recited in the report, amount, in law, to such note or memorandum, on his part, it is not perceived how they can have such effect as to Jacobs, the other defendant. He did not sign them himself, nor by any other person. His name, William Jacobs, no where appears in the letters. He is spoken of by Clark, in his first letter, as Mr. Jacobs, and, in the second, embraced, undoubtedly, in the term, we; but no case in the books, so far as my researches reach, even tends to sustain the position, that this is sufficient to take the contract out of the statute, as to Jacobs.</p> <p>A contrary decision, it seems to me, would subvert all previous authorities, nullify the statute and open a wide door to all the evils it was designed to prevent. Nor have the defendants ever accepted the machine “and actually received the same.” Doughty, the teamster, was their agent, for a certain specific purpose, witli strictly limited powers. That purpose was to carry the note to Emery, Stetson & Co’s., and leave it with them, if he should bring the machine from them to the defendants. If he did not bring the machine, his orders were positive not to leave the note. Did he bring the machine ? No. Did he leave the note ? Yes. He, therefore, disobeyed his orders, transcended his authority; and the defendants are not bound by his acts. Snow v. Perry, 9 Pick. 542.</p> <p>It may be said, that Doughty concluded to bring the machine before he left the note and took it on to his sled for this purpose, and that this is tantamount to a delivery to, and an actual receipt by the defendants. I reply, that he left the note without bringing away the machine, so exceeding his authority and. not binding the defendants. No conclusion, no determination of Doughty to bring it, no removal of it from the shop to his sled, and afterwards returning it because he could not bring it, nothing short of actually bringing it away, could authorize his leaving the note, or be considered as a compliance with the orders of the defendants, “ not to leave it unless he should bring the machine from Emery, Stetson & Co.” Resides, Doughty, after ascertaining by trial that he could not bring it, replaced it in the shop of Muzzy, notified Mr. Emery, of the firm of Emery, Stetson & Co. of the fact, repeated his orders, and demanded the note. All these and the other acts of his relative to this matter must be taken together. So viewed they clearly show the intention of Doughty to be the fulfilment of his instructions. And he was, eventually, only prevented from so doing by the wrongful detention of the note by Mr. Emery, acting, no doubt honestly, under a misapprehension of duty. Nor have the defendants, at, any time, ratified Doughty’s acts either impliedly or expressly. On the contrary they entirely repudiated them to him on his return, and, as soon as was necessary, to Emery, Stetson & Co. the plaintiff’s agents in this behalf, the machine having been so immediately burned, even before it was practicable to communicate with the plaintiff, directly or through that firm. There has been no payment in part or whole for the machine. For the note having been left with Emery, Stetson & Co. by Doughty, in plain violation of his orders, and withheld wrongfully by Emery, it must be regarded, as has been shown, as not left by the defendants, and as never having vested in the plaintiff.</p> <p>The agreement for the sale and purchase of the machine not having been completed before it was consumed by fire, the loss legally falls upon the plaintiff, and he must bear it. Thompson v. Gould, 20 Pick. R. 134, and cases there cited.</p> <p>The machine was out of repair. That the plaintiff was bound to repair it, is proved by his causing it to be repaired at Muzzy’s shop. Hiá agreement was to deliver it in good repair, at Emery, Stetson & Co.’s store, when called for. It was repaired, arid was suffered to remain at the shop. He ought to have removed it back to the store, and had it ready for delivery there. If it had been in the store it could not have been burned up in the shop. . Its burning, then, Was the consequence of his own neglect, and to throw- the loss upon the defendants would be hard, indeed, and grossly unjust. It is manifest that the plaintiff never had informed the defendants, that he had sent the machine to Muzzy’s shop for repairs, and of its being there, and they could not consent to its being there before they employed Doughty to transport it to them, and he called on Emery, Stetson & Co. for it; and his acts, clearly, on every principle, cannot be construed into such consent subsequently. Nor can the plaintiff object that the defendants should have called and taken the machine away earlier, and thus avoided the loss. It does not appear that the machine was repaired and fit for delivery, according to the terms of the contract, sooner. In fact, it was not ready for delivery, as agreed, when called for, on the 2d of March, 1841. And, if it had been, I submit whether the defendants delayed sending for it beyond a reasonable time, so as to make them responsible for its loss, even if the contract were liable to no objection by reason of the statute of frauds, as before urged.</p> <p>2d. As to the note. If the grounds I have taken in relation to the contract are tenable, it follows, that the note is void, for want of consideration; and, moreover, whether so or not, that the plaintiff is not entitled to it, does not own it, having-got it not only, withoutj but against the consent and authority of the defendants, and cannot therefore, maintain this action upon it.</p> <p>The shearing machine -was sold and delivered to the defendants, and the plaintiff is entitled to judgment, either on the note of hand, or on the count for goods sold and delivered. The latter count is not within the statute of frauds. There is a clear distinction between an action for goods sold and delivered, and an action on a contract for the sale of goods. The latter only is within the statute; Pmnirnan v. Harts-horn, &r at. 13 Mass. R. 87. But if this were a case within the statute, the letters of Clark, connected with the evidence in the case showing the joint interest of Jacobs with him, and their signatures to the note of hand, are sufficient to take it out of the statute;</p> <p>To whom then did the machine belong, When it was consumed by fire? From the whole case it appears, that the plaintiff, being the owner of a shearing machine, agreed to sell it to the defendants on a credit of six months for sixty dollars, and to deliver it at some place in Bangor to be designated by him; and that he afterwards, and sodn after the letter of Clark of the 22d July, 1840, gave them notice, that the machine had been placed in the store of Emery, Stetson & Co. That this notice was duly given and received may be inferred from the fact, that the defendants soon after sent for it.</p> <p>The plaintiff contends, that,, the moment information was given the defendants of the place where the machine was delivered, it became their property. This delivery was in law a delivery to them. The terms of the sale had been agreed on, every thing, incumbent on the plaintiff to do, had been performed, and the sale had become absolute. Comyn on Cont. 135; 2 Kent, 492. He says, “ when the terms are agreed on and the bargain is struck, and every thing the seller has to do with the goods is complete, the contract of sale becomes absolute without payment or delivery, and the property and the risk of accident to the goods vest in the buyer.” As soon as goods are delivered to a carrier or put on board a vessel by direction of the purchaser, they are at his risk. Vale v. JBayle, Cowp. 294; King v. Meredeth, 2 Campb. 639; Cooke v. Ludlow, 2 New Rep. 119, cited and commented on in Comyn on Cont. 135. And the seller or consignor cannot maintain aii action against a third person for an injury done to the goods. Brown v. Hodgson, 2 Campb. 36. Even if the goods are sold on credit, and nothing is agreed on as to the time of delivery of the goods, the right of possession and property forthwith vest in the vendee. Bloxam v. Sanders, 4 Barn. & Cresw. 941.</p> <p>But there was an actual delivery. It seems the teamster, when he called for the machine in the summer, when it was ready to be delivered, declined taking it, because he would not give a receipt to Emery, Stetson & Co. acknowledging that he had received it. On account of this delay, the defendants had fitted up an old machine of their own, and were desirous of giving up the contract. This was declined by the plaintiff, but he consented to extend the time of payment to one year. As appears by the letter of Clark of Nov. 16, he promises to send a note of hand conformable to that proposition and take the machine. The contract, or rather sale, stood as it was, except as to the time of payment. After suffering the machine to remain from the summer of 1840 to March, 1841, the defendants sent again for the machine, with their note in payment. The'note was delivered and the machine received on the carrier’s sled. Consulting his own convenience and not following the instructions of his employers, he returned the machine into the shop, where it was soon after consumed by fire.</p> <p>Suppose that the property in the machine had not vested in the defendants, until it was received by the carrier and placed upon his sled. It cannot be denied that this was a delivery to them. The carrier was their agent; they had directed him to take the machine and bring it to them; and it having been once received into their possession, the property vested in them, and could not be revested in the plaintiff without his consent. In regard to the delivery of the note, the carrier conformed substantially to the instructions of his principals. Suppose he had driven his team two miles out of town and then concluded to leave his machine, would he have returned and demanded his note, and. should Emory have delivered it up to him? The two cases arc substantially the s&me.</p> <p>But it has been shown that the property had, months before, vested in the defendants, and their letter of November, is evidence, that they so considered it. “ They felt bound in honor to take it,” and they did take it. It is worthy of notice, that when they sent for the machine on the 2d March, 1841, they sent their note bearing date Jan. 1, two months before. Why was this nolo thus dated, unless the bargain had been completed at that time ?</p> <p>The counsel for the defendants seems to regard Emery, Stetson & Co. as the agents of the plaintiff. This we deny. The plaintiff had nothing to do with tiro machine after he placed it in their store.</p> <p>lie also states, that the machine was out of repair; and, that the plaintiff was bound to repair it, was to be inferred from his having sent it to Muzzy’s shop. This is contradicted by Emery, the witness. lie stated, that, “in the mean time,” that is between the first and second time of sending for the machine, it “ had got injured and we sent it to Muzzy’s shop to be repaired.” It was their duty to see, that any injury received by the machine, while in their care, should be repaired.</p> <p>The hardship of the case has nothing to do with the legal question. But it is evident the loss arose from the negligence of the defendants or their agent. Had the teamster given a receipt for the machine, as required, which he ought to have done, no loss would have happened. Then seven months were suffered to elapse before it was again sent for; and this was gross negligence. On the other hand, it appears the plaintiff performed his duty promptly and without delay,</p>

<p>Assumpsit for professional services as a counsellor at law, rendered in defence of an action, Morse v. the defendant and one Williams, on a six months bond. The amount of services and moneys paid, as agreed upon, was $40. There were other judgment debtors in the execution, upon which Williams was arrested, and upon which said bond was given; and one of them paid $60 toward said bond, leaving a balance of some 6 or $8 due, and it was claimed in that suit, that Morse was entitled to the full amount of the bond for the benefit of the judgment debtor, who paid the $60. The defendant claimed that Morse was entitled to judgment only for said balance; and the defence was successful, and judgment was for the balance only, as claimed by the defendants.</p> <p>The defendant alone was sued, as Williams had gone into bankruptcy.</p> <p>The defendant proved that lie was only surety on said bond; that the plaintiff was requested by Williams to defend the said action, and that the defendant did not request, him to employ the plaintiff, or any one to defend the suit; that Williams stated to the plaintiff, after he had commenced his services in the action, that he intended to pay him for his services. The plaintiff charged his bill to said Williams and the defendant, and about the time he was employed in the action he made inquiry as to the ability of Davis to pay him his fees, and then ascertained, that he was responsible, and that Williams was poor. The plaintiff never had any correspondence or conversation with the defendant, during the pendency of the other suit, and indeed never saw him till the institution of the present suit.</p> <p>Davis, during the time the six months bond was running, had an obligation given him by Williams’ brother, procured by Williams, to save him harmless from all liability arising out of said bond. Said brother is responsible.</p> <p>Williams also testified, that lie told Davis that he had employed the plaintiff to defend the case, and that he, Williams, would clear him, Davis, from the bond; and that said Davis replied, that he had spoken to Mr. Blake to defend the case, if he, Williams, had not employed some one to defend it. The parties agreed to submit the case to the decision of the Court upon the foregoing statement, and a nonsuit or default was to be entered.</p>

This case came before the Court upon an agreed statement of facts, the substance of which appears in the opinion of the Court. A demand for the property had been made; and this suit had been commenced before either of the defendants had filed his petition in bankruptcy.

Covenant broken. The plaintiffs in their declaration set out a warranty deed, with the usual covenants, made by the defendant to Nathaniel Herrick, the father of the demandants, dated Oct. 17, 1818, and conclude as follows. “ The said Sanger, by virtue of bis mortgage aforesaid, entered upon the said lot of land, or farm, and evicted the said plaintiffs of the said lot of land, or farm, and have held them out to the time of the date of this writ.

At the trial, before Whitman C. J. the demandant, to support his writ of entry, read a deed of the demanded premises from Frederick French to the late George W. Walling-ford of Kennebunk, dated March 12,. 1804, and proved that he was a son of the deceased, and produced conveyances from the other heirs of their shares. The land had never been improved, but remained in the original wild state. The tenants claimed under a tax title, by deed dated August 31, 1819.

<p>Trover for a dwellinghouse. The case had been once tried, and the verdict had been set aside and a new trial granted. The order for a new trial was sent from the county of Cumberland; and under the name of the action in the county of Washington was entered, “ verdict set aside and new trial granted.” The entry of the clerk upon his docket was in the words of the order. The house had been put upon land of a person other than the one who erected it, with the consent of the owner of the land. Both parties claimed the house, as personal property, under the same person; the defendant, under a sheriff’s sale on execution, and the plaintiff, under a bill of sale from the debtor. . The facts sufficiently appear in the opinion of the Court.</p> <p>on the point that the presiding Judge erred in ruling that the whole case was open for trial, cited Robbins v. Townsend, 20 Pick. 345; Winn v. The Columbian Ins. Co. 12 Pick. 288; Williams v. Henshaw, 12 Pick. 378.</p> <p>On the point, that the title under which the defendant claims failed, because the officer had kept the property but three legal days before the sale, as to make out the four days he must include the Lord’s day, which the law does not permit ; he cited Windsor v. China, 4 Greenl. 304; Brown v. Maine Bank, 11 Mass. R. 153; Hale v. Owen, 2 Salk. 225; jOaveis v. Salter, 2 Salk. 627 ; Lee v. Carlton, 3 T. R.« 642; Soloman v. Freeman, 4 T. R. 555; Thayer v. Felt, 4 Pick. 354. That the officer had no right to adjourn the sale in the manner he did. 7 Greenl. 376; 5 Pick. 186.</p> <p>and on the point, that setting aside a verdict necessarily opened the whole case, cited Sawyer v. Merrill, 10 Pick. 16, and cases there cited; Howe’s Prac. 519.</p> <p>On the point that the defendant acquired a valid title to the property under the sheriff’s sale on execution, he cited Richards v. Russell, 2 Fairf. 371 ; Stat. 1821, c. 60, § 5; Caldwell v. Eaton, 5 Mass. R. 404.</p>

Trover for a quantity of board logs, and also for a quantity of boards, with counts in trespass de bonis asportalis for the same. The case came before the Court on a motion for a new trial, because, as was alleged, the verdict was against law, against evidence, and against the weight of evidence; and also on a report of the case by the Judge presiding at the trial.

This was a writ of error brought by Whitney to reverse a judgment of a justice of the peace, rendered against him in a suit brought by Balkam, as adjutant of the regiment, detailed by the commander thereof to train and discipline a company of militia, which was alleged to have been without any commissioned officer for the term of three months, to recover a penalty for the non-appearance of Whitney at a company training.

Replevin for sixty pine mill logs. General issue pleaded, with a brief statement, traversing the title of the plaintiff, and alleging, that the logs were the property of Greenlaw, and that he, as a deputy sheriff, attached them on a writ in favor of Munson against Greenlaw. At, the trial, before Sheplev J. a verdict was rendered in favor of the plaintiff, and no objection appears to have been made by exceptions, or by the report of the Judge, to the rulings or instructions.

<p>These cases were both opened to the jury as one, and after the evidence on the one side and on the other had been introduced or offered, the parties agreed, that the case should be taken from the jury, and submitted to the decision of the Court, upon a report of the evidence by the presiding Judge; with power to make such inferences as a jury might properly make upon the proof, or upon so much thereof as should be legal evidence in the case. And the Court were to enter a default or nonsuit in each of the cases, and judgment according to the rights of the parties.</p> <p>The facts, considered by the Court to be proved by the evidence, are stated in the opinion.</p> <p>These cases, both as to the facts and the law arising thereupon, were argued by</p> <p>that if Wheeler & Sons had a lien on the goods of Barnard & Pike for the freight, it was discharged by the tender, cited 5 T. R. 409. That the Master’s contract for freight, evidenced by the bill of lading signed by him, was binding upon the owners. Abbott on Shipping, 92; 4 Campb. 298 ; 8 Maine R. 356; 14 Maine R. 183; 17 Maine R. 153; 11 Mass. R. 91; 6 Cowen, 173. And the same authorities show, that the contract of W. P. Wheeler, the agent of the owners, was binding upon them. The letter of Wheeler & Sons to W. T. Wheeler was a mere letter of information, and not a binding contract, or even a restriction of the authority of the agent. A mere ex parte offer, not accepted, can bind no one. 16 Maine R. 458. The owners of the vessel had no right to call on Barnard & Pike for freight of Curtis’ goods, and certainly no lien on their goods for the payment thereof. Abbott on Shipping, 247; Montagu on Lien, 55. Whether the tender was sufficient or not in amount is immaterial, as it was refused, on the ground, that the money would not be received, unless a receipt given, was produced; a condition he had no right to require. 4 Mass. R. 91; 15 East, 547. If the owners of the vessel had a lien, and if it had not otherwise ceased to exist, it was discharged by the bringing of their action for the freight, and attaching the goods of Barnard & Pike to secure the whole amount. 5 Pick. 178; 12 Petrsd. Abr. 206 and cases there cited; 2 Harrison’s Dig. 1452. In the suit in favor of Wheeler & Sons against Barnard & Pike, the defendants offered to be defaulted for $200, and the interest. Therefore, whether the tender was good or not, the action cannot be maintained for a greater sum, if the contract made by the agent of the owners, and sanctioned and adopted by the master, and even adopted by the owners, by their neglecting to give seasonable notice of their disaffirmance of the acts of their agents, is binding.</p> <p>cited in support of his position, that as this was not a general ship, the master has no right to make a contract for freight, and cannot bind the owners thereby. Abbott on Shipping, 92, 95, 98; 4 Greenl. 407 ; 19 Johns. R. 235; 11 Mass. R. 99; Story on Agency, 37. If the owners have made a special contract, the master has no power to alter it. Abbott, 99. If the master had authority, it was personal to himself, and he could not delegate it to another. Story on Agency, 14, 15, 38, 39. If W. T. Wheeler was the general agent of Wheeler & Sons, he had no right to vary from special instructions; and inasmuch as Barnard knew what those instructions were, he had notice sufficient to put him on his guard. Barnard having seen one of the firm but two days before he made the bargain with W. T. Wheeler, had notice that such one would not be approved by the owners; and therefore Barnard should not have induced W. T. Wheeler to make it, and cannot hold the owners to it. The contract cannot bind the owners, because he was guilty of misrepresentation, and had he made known the facts, W. T. Wheeler would never have made such bargain. The plaintiffs cannot now say, that they tendered as much as the freight of their own goods came to, for their tender was as per bill of lading; and if accepted, would have authorized them to receive to their own use the freight from Curtis. 2 Mete. 283 ; 18 Pick. 414; 8 Mass. R. 365. The tender, too, was conditional, and so not good. 12 Mass. R. 450.</p>

The facts in the case are stated in the opinion more fully than they are to be found in the other papers which have come into the'Jiands of the Reporter. citing Newall v. Hussey, 18 Maine R. 249, and Abbott v. Upton, 19 Pick. 434.

Writ or Entry. A statement of facts was agreed, referring the case to the decision of the Court thereon. Such of the facts as are material, are found in tho opinion. said that the tenant did not now set up any claim of title in himself, nor does he claim to hold under any one else. Ho attempts to defend by a mere naked denial of the demandant’s title.

This was a bill in equity in favor of Isaac H. Holden against Asa Pike and Jonathan Pike, and was heard on bill, answer and proof. The parties and witnesses all lived in the State of Rhode Island. The controversy grew out of the purchase of land in the county of Aroostook in this State. What of law there is in the case, will be understood sufficiently from the facts stated in the opinion of the Court. The case was argued by

<p>Writ of error, brought to reverse a judgment before a justice of the peace, rendered in an action in favor of Wilson, as clerk of a company of militia, against Simpson to recover a fine for neglecting to appear at a company training.</p> <p>The questions, whether the original suit could be maintained under the circumstances stated in the papers before the Court, were argued in writing by</p> <p>The case was disposed of without considering the questions' argued by the counsel.</p>

Replevin for a horse. With the general issue the defendant, by brief statement, alleged that he had a legal claim or -lien upon the horse for the keeping, care of and medicine .for him. H. Pond once owned the horse, and in September, 1841, contracted to sell him to Jefferds, then and still insolvent.

This case arose out of a report of referees on a submission under the statute, signed by Harrison Tweed, William Pike and Bion Bradbury, as directors of the bank, appointed by the Governor on the surrender of the charter.

The publication of the very voluminous papers in this case, or of any abstract that could well be made of them, it is believed, would have little tendency to give any better understanding of the points decided.

<p>If one of the alternatives of a poor debtor’s bond bo, that the debtor should cite tbo creditor, named in the execution, before two justices of the peace, quorum wins, and submit himself, esc. instead of before “ two justices of the ‘peace and of the quorum” as required by Rev. Stat. c. 148, § 20, such bond can be good only at common law.”</p> <p>.If but one justice of the peace and of the quorum appears at the time and place fixed in the notice from the debtor to the creditor, he has no power under the statute to adjourn to a subsequent time.</p> <p>If the justices who administered the oath to the debtor, are not authorized, in conformity with the provisions of the statute, to act in the matter, their -certificate of discharge has no validity whatever.</p>

Writ of entry demanding four-sevenths of a certain tract of land in Deer Isle, the same assigned to the widow of John Scott, for dower in his estate. The demandant claimed one-seventh as an heir of John Scott, and three-sevenths by purchase from other heirs.

Assumpsit against the defendant, as indorser of a note, of which a copy follows: —- “ $500.

Trespass on the case against the defendants for cutting away the plaintiff’s nets, and depriving him of his rights of salmon fishery from 1834 to the date of the writ in 1840. To show his title, the plaintiff introduced a deed from Abner Knight to Samuel Duncan, dated July 19, 1819.

<p>Debt on the bond of Johnson, as principal, and of the other defendants, as his sureties, to the Frankfort Bank, dated Oct, 9, 1839. The case came before the Court on exceptions in behalf of the bank, to the rulings and instructions of Tenney J. presiding at the trial, and on a motion to set aside the verdict, as against evidence, and against the weight of evidence. The facts sufficiently appear in the opinion of the Court, as do also the rulings and instructions of the Judge, to which exceptions were taken.</p> <p>The case was concisely argued orally by</p>

Exceptions from the District Court, Redington J. presiding. Assumpsit on an account annexed to the writ, which was for one “ red sleigh,” under date of Nov. 24, 1840, charged at $36.

<p>The justices taking the examination of a debtor, should not administer the oath prescribed by the statute, if they discover by the examination any thing inconsistent with the oath. Any course of examination, therefore, by the creditor, which would have a tendency to exhibit conduct of the debtor inconsistent with that oath, would be pertinent and appropriate.</p> <p>The debtor is required by the oath to declare, not only that he has not conveyed property with intent to defraud the creditor on whose execution he has been arrested or committed, but also that he has not, since that debt was contracted, conveyed or entrusted to any person or persons whomsoever, all or any part of the estate, real or personal, whereof he has been the lawful owner or possessor, with any intent or design to secure the same, or to receive or expect any profit, adv intage or benefit therefrom, to himself or others, with any intent or design to defraud any of his creditors.</p> <p>If the justices deprive the creditor of his rights, by preventing or restraining such an examination, a writ of certiorari will be granted, on the petition of the creditor.</p>

This was a bill in equity brought against Reuben Humphrey, as administrator of the estate of William Marston, deceased, Margaret Marston, widow of said deceased, and the five minor children of said William Marston. The administrator and the widow put in answers, and the plaintiff proceeded and took his evidence. The minor children never had any guardian appointed by the Judge of Probate, and none was appointed for them for the present suit. They did not appear.

<p>In a writ of entry dated Oct. 28, 1844, the demandant, declaring on his own seizin within twenty years and alleging a disseizin by the tenant, demanded an undivided portion of a farm in Windham. The general issue was pleaded, with a brief statement, wherein the tenant requested that the jury would inquire, and by their verdict ascertain the increased value of the premises by reason of the improvements made thereon by him.</p> <p>At the trial before Whitman C. J. the demandant proved title in Jonathan Varney; the marriage of Varney with Dorothy Sanborn; the will of Varney; Ms death; the approval of his will in the Probate Court, Sept. 10, 1806, wherein he devised to said Dorothy “ the whole of my estate, real and personal, during her natural life ;” the marriage of said Dorothy afterwards with Stevens, the tenant; and that they lived upon the premises until her death, on April 4, 1841.</p> <p>The reversion was not devised by Jonathan Varney; and the demandant read in evidence deeds, duly acknowledged and recorded, made since the decease of said Dorothy, from heirs at. law of Jonathan Varney to the demandant, of about four-ninths of the farm.</p> <p>The tenant then offered in evidence deeds from the collector of United States direct taxes to Howe, but made no proof of any preliminary proceedings, showing authority to make the deed; from Howe to Staples; from Stevens and wife to Staples ; and from Staples to Stevens and wife. The couns'el for the demandant objected to the admission of each of these deeds; and the objections were sustained by the presiding Judge, and the deeds were excluded.</p> <p>The tenant then offered “evidence to prove the increased value of the promises by reason of the improvements made on the same by himself and that they were proper and judicious under the circumstances of the case; and that he had been in the sole possession of the premises, claiming title in himself exclusively, since the date of the deed of Staples to Mm in January, 1819, and that since that time he claimed the premises adversely to the reversioners. This evidence was objected to by the demandant, and excluded by the presiding Judge.</p> <p>The tenant contended, that the demandant could not, under the facts, sustain Ms action, because that at the time he took his deed from the heirs of Jonathan Varney, the tenant, was in possession of the premises, claiming title thereto. This objection was overruled by the presiding Judge.</p> <p>The Judge ruled, that the deed from Staples to Stevens gave the latter no title to the land as against the reversioners or their grantees, and did not entitle the tenant to claim for his improvement of the estate against them, or either of them; and could not be set up as available against the title proved by the demandant, as derived by him under the deeds of the heirs and reversioners of the estate demanded.</p> <p>If the rulings were correct, the tenant was to be defaulted; otherwise the cause was to stand for trial.</p> <p>The case was argued in writing.</p> <p>The argument for ihe tenant was as follows, by</p> <p>It appears from the case reserved, that Dorothy Varney, widow of Jonathan Varney, became possessed of the demanded premises by virtue of a will, approved Sept. 10, 1806, whereby her deceased husband bequeathed the same to her during her natural life. It further appears that the defendant afterward married the said widow and thereby became tenant, for the life of his said wife, of the demanded premises. It further appears that the wife died April 4th, 1841. It also appears that Wood-bury Storer, acting as collector of the direct tax imposed by the government of the United States, on the alleged failure of the tenant to pay the tax assessed on said premises, conveyed the same by deed to Daniel Howe, dated August 11, 1818, and recorded the same day. It also appeared that said Howe on the same eleventh day of August, 1818, by a deed duly acknowledged and recorded, conveyed the same premises to Joseph Staples. It also appeared, that the defendant and his wife Dorothy by deed, dated Nov. 4,1818, and recorded Sept. 8, 1844, conveyed all their right in the premises to said Joseph Staples. It further appeared that said Joseph Staples by his deed dated January 9, 1819, duly acknowledged and recorded the same day, conveyed to the defendant the demanded premises. It further appears, that the defendant has been in the sole possession of the premises, occupying and improving them as his own, claiming title in himself exclusively and adversely to the supposed reversioners since the said 9th day of January, 1819, the date of said Joseph Staples’ deed to the defendant. That, since the said time, he has increased the value of the demanded premises by improvements made on the same by himself, and that such improvements were proper and judicious under the circumstances of the case. It further appears, that after the death of the said Dorothy and before any entry made by the heirs in reversion of Jonathan Varney, the demandant purchased of the supposed heirs of the reversion of the premises, by deed duly executed and recorded, about four ninths of the demanded premises, and thereupon on 28th Oct. 1844, sued out the present writ of entry, counting on his own seizin within twenty years, and a disseizin by this defendant.</p> <p>The first objection to the plaintiff’s maintaining the present suit, is, that the defendant at the time when the said supposed heirs of the reversion undertook to convey the premises to the demandant, was in the sole and exclusive possession thereof chiming them as his own, occupying them under a deed from Joseph Staples, duly acknowledged and recorded, and under a possession avowedly adverse to any claim of the heirs. The Rev. Stat. c. 145, <§> 6, does not authorize the purchasing up of dormant titles. It is still necessary that the grantor should be in possession of the premises conveyed at the time of conveying them, either actually or constructively and in contemplation of law. The statute referred to, dispenses with an actual entry when there was a right of entry, but only in the case of the person who had the right of entry, and not in the case of his grantee. If the statute should be construed otherwise, the whole law in regard to the purchase of dormant titles is necessarily repealed by implication.</p> <p>In case of an actual disseizin, the disseizor has a right of entry at any time within twenty years, and he can maintain no action after a lapse of twenty years ; it follows therefore, that if the grantor, having a right of entry merely, there being a person in the actual possession and improvement and holding the premises adversely, can convey the title to a third person, without entry, and that third person without, entry can maintain an action, declaring on his own seizin, the whole law of real estate by virtue of the sixth section referred to, has undergone a radical change, and every person is at liberty to speculate in dormant titles, who chooses to embark in it.</p> <p>The second objection to the ruling of the Judge, is, that at all events, the defendant is entitled to his betterments. By the deed of the defendant and his wife to Staples of Nov. 4, 1818, the wife ceased to have any interest in the premises.</p> <p>The defendant, at the time of the commencement of the plaintiff’s suit, had been in the possession of the demanded premises, for more than twenty years, claiming them as his own. Now it is contended that under section 23d of the Rev. Stat. already referred to, the defendant is entitled to his betterments, for he has been in actual possession claiming them for more than six successive years before the commencement of the action. In connection with this branch of the case the Court is referred to the additional act to chapter 145, of the Rev. Stat. approved March 4, 1843.</p> <p>If the deed from Staples of Jan. 9, 1819, should be construed as conveying to Stevens, the defendant, only the life estate in the premises which formerly appertained to Dorothy Stevens, then the defendant is the assignee or grantee by deed from the tenant of the life estate, and falls within the provisions of the additional act referred to, provided his buildings and improvements, erected and made by the defendant, were proper and judicious under the circumstances of the case. Now the case expressly finds, the improvements made by the defendant were of that character.</p> <p>contended: —</p> <p>That the main questions arising on the report of this case, were decided in the case, Varney v. Stevens, 22 Maine R. 331.</p> <p>The deed of Stevens and wife to Staples, and his deed back to them, had no effect whatever upon the rights of the reversioners. They were mere naked releases, for a nominal consideration, passing the life estate to Staples and from him back to them. The deed from Stevens and wife to Staples could not operate as a forfeiture of their life estate, for that only was conveyed. Having failed to accomplish his object by fraud, he attempts to do it by procuring an act of the legislature to give him betterments, which did not belong to him, as was decided in the case already cited.</p> <p>The statute of March 4, 1843, cited and relied on by the counsel for the tenant, if applicable to the present case, is unconstitutional and void.</p> <p>On the decease of the widow of Jonathan Varney, his heirs at law became seized of the whole estate, in fee simple, unencumbered by any legal or equitable claim to betterments or improvements made thereon. They had vested rights to the whole estate ; and no law passed by the legislature, after their rights had so vested, could divest them. The direct effect would be, to take the properly from one man and transfer it to another by an act of legislation. And this the legislature cannot do. Constitution of Maine, art. 3, § 1, 2, — art. 6, <§> J, — art. 4, § 1, — art. 1, § 21; Ken. Fur. v. Laboree, 2 Greenl. 275; Lewis v. Webb, 3 Greenl. 326; Lewiston v. Durham, 4 Greenl. 140 ; Oriental Bank v. Freeze, 18 Maine R. 109 ; Society, &fC. v. Wheeler, 2 Gallison, 143 ; Dash v. Van Kleeck, 7 Johns. R. 477 ; 3 Dali. 386 ; 11 Mass. R. 396.</p> <p>On the death of the tenant for life, the defendant’s rigid wholly ceased; and any improvements made by him upon the premises were but a part of the estate ; and as such belonged to the reversioners. .New Gloucester School Fund v. Bradbury, 2 Fairf. 118; Runey v. Edmunds, 15 Mass. R. 291; Varney v. Stevens, before cited.</p> <p>After the marriage the tenant had a legal right to the enjoyment of the estate in right of his wife until her death, and did not hold adversely to the reversioners. They had no power to enforce their rights until her death. To entitle any one to betterments, there must be a holding adversely to the owner. Varney v. Stevens, 22 Maine R. 331 ; Bacon v. Callender, 6 Mass. R. 303; Mason v. Richards, 15 Pick. 141; Larcom v. Cheever, 16 Pick. 260.</p>

Assumpsit to recover the wages of a minor son of the plaintiff for the term of three months and twenty days, commencing on Oct. 28, 1843, as a seaman on board a vessel belonging to the defendants. The services were performed, and the defendants proved payment therefor to the son, and contended that this was a discharge from the father. The defendants at the time of making the contract, knew that the son was under age.

<p>In an action brought by two plaintiffs, a writing signed by one of them, not under seal and without consideration, forbidding the further prosecution of the action in his name and purporting to be a discharge of the same, produced by the defendant, will not have that effect, for it is not technically a release, not being under seal, and does not amount to an accord and satisfaction, nothing being paid.</p> <p>An assignment by one partner to the other of his interest in all the partnership demands, is good in equity, and gives to the assignee the right to use the name of the assignor to enable him to collect for his own use any debts due to them jointly at the time; and the discharge of the assignor, given afterwards without consideration, will not discharge an action brought in the name of both.</p> <p>The Stat. of 1821, c. 62, (Stat. of limitations) was repealed by the repealing act of 1841, and the exception in the former act of “ such accounts as concern the trade of merchandize between merchant and merchant,” was entirely omitted in the Rev. Stat. of limitations, c. 148. Therefore, since the Rev. Stat. went into effect, the operation of the statute of limitations, to bar an action on such accounts, was not prevented.</p> <p>Where the plaintiffs, the defendant and two others had built a vessel jointly, and after the lapse of more than six years from the time any cause of action had accrued, the defendant wrote a letter to a son of one of the plaintiffs, wherein he, after stating the difficulties that he and the two other owners had experienced in their attempts to procure a settlement with the plaintiffs, says, “when the whole can be settled we are ready; then, if I owe your father I will pay every cent that is due;” and no attempts had been made by the plaintiffs to procure a settlement; it was held, that the demand was not thereby taken out of the operation of the statute o f limitations.</p>

Assumpsit against the defendant, who was admitted to have indorsed the note of which a copy follows: — “ $282,16.

<p>Where a mortgage of a dwellinghouse, standing on land of a third person with his permission, has been foreclosed, and the mortgagor, after having received thirty days notice in writing to quit the premises in manner provided by Rev. Stat. c. 128, “ Of forcible entry and detainer,” still remains in possession, the mortgagee cannot, nor can his assignee, sustain a complaint against the mortgagor, under that statute, to obtain possession of the premises.</p>

<p>The return of Waterhouse, a deputy of the defendant, upon the execution in favor of the plaintiff against Daniel Burnham and- David Webster, was — “ March 8, A. D. 1844. I arrested the within named Daniel Burnham, who thereupon gave the bond which is hereunto annexed as the statute requires, and was discharged from the arrest.</p> <p>“J. M. Waterhouse, Dept. Sh’ff.”</p> <p>The balance due on the execution, at the time of the arrest, with interest and officer’s fees, was $5,221,63, and the penalty of the bond was in the sum of ten thousand dollars.</p> <p>The facts are given in the opinion.</p> <p>citing Clap v. Cofran, 7 Mass. R. 98; Winthrop v. Dockendorjf, 3 Greenl. 161; and Howard v. Brown, 21 Maine R. 385.</p> <p>citing Carey v. Osgood, 18 Maine R. 152; Cunningham v. Turner, 20 Maine R. 435; and Horn v. Nason, 23 Maine R. 101.</p>

<p>A surety in a poor debtor’s bond has no authority, under the poor debtor act of the Rev. Stat. c. 148, to surrender and deliver his principal into the custody of the jailer, against the will of such principal.</p> <p>Where one of the alternatives of the condition of such bond is, that the debtor shall “be delivered in custody of the jailer,” a legal delivery only, and not an illegal commitment, will constitute a performance of that part of the condition.</p> <p>A poor debtor’s bond must be made in conformity with the statute provisions in force at the time in all its material parts, or it will not be a good statute bond, although it may secure to the creditor equally valuable rights.</p> <p>If one of the alternatives of the condition of the bond, taken since the Rev. Stat. were in force, be — ‘ And take the oatli or affirmation as provided in the seventh section of an act entitled an “ Act supplementary to an act for the relief of poor debtors,’ passed April 2d, 183G, and perform all the other conditions provided by the laws of the State, relative to the relief of poor debtors” — that part of the bond which relates to the statute of 183G, cannot be considered as void, and rejected as surplusage.</p>

<p>When a valid mortgage of personal property is made and duly recorded, an officer is not authorized either by Rev. Stat. c. 117, or by the act of amendment of 1842, c. 33, to make an attachment of the same on mesne process, as the properly of the mortgagor, without first paying or tendering the full amount of the debt due, secured by the mortgage.</p> <p>If a mortgage of personal property is duly recorded, it becomes effectual, being otherwise valid, without a formal delivery of the property, whether it be the first, or a second mortgage of the same property.</p> <p>There may be a second mortgage of personal property, under our statutes, which shall be valid against all but the first mortgagee and his assigns.</p> <p>It is not necessary, that the payment or discharge of a first mortgage of personal property should be recorded, in order that a second one should hold the property against an attaching officer.</p> <p>Where an officer returns upon a writ an attachment of personal property, and sets up such attachment, in defence, on the trial of an action of replevin against him for the same property, it is to be presumed that he did whatever was necessary to constitute and preserve his attachment; and in the absence of any opposing proof, this will be sufficient evidence, that the property had been in his possession.</p>

<p>An alien acquires no life estate in the lands of his wife by virtue of his marriage ; and a levy thereupon as the estate of the husband gives no title to the creditor.</p>

<p>Whon a person has received a benefit from, or occasioned a loss to another, and a statute, or rule of public policy, protects him from making compensation, the moral obligation so to do remains, and constitutes a legal consideration for a promise to do it.</p> <p>But a promise to pay a debt voluntarily discharged, is not binding for want of a legal consideration.</p>

Exceptions from the Western District Court, Goodenow J. presiding. Trover by the plaintiff, as administrator of the estate of Robert Witherspoon, against Richard Gower and A.biezcr S. Freeman, for the conversion of a wagon and other articles of personal property, alleged to have been the property of the intestate.

Case for a “ malicious arrest and imprisonment” on an execution in favor of the defendants against the plaintiff and several others.