Volume 25 — Maine Reports

<p>If a contract, in writing be made by one as agent for another, to convey an interest in certain lands on the payment of a promissory note, given as the consideration therefor, and the contract does not bind the principal to make the conveyance, but the agent is personally responsible for the payment of any damages sustained by any breaches of the contract, the payment of the note cannot for that cause be avoided for want of consideration.</p> <p>A contract, not under seal, to convey an interest in real estate upon the performance of certain conditions, made by an authorized agent of the proprietor of the estate, may bind the principal, as it would if made by himself.</p> <p>If from the whole instrument it can be collected, that the object and intent of •it are to bind the principal, and not merely the agent, Courts will adopt that construction of it, however informally it may have been expressed.</p> <p>The assignment of a contract to convey an interest in real estate upon the performance of certain conditions, vests an equitable interest therein in the as-signee, which will he protected and made available by courts of law.</p> <p>And if the contract be to convey an interest in an undivided half of the land, upon the payment of one half of certain notes given to a third person, as the consideration of a former purchase of the same estate, and both parties fail to make their respectivo payments of those notes, but the maker of the note, given as the consideration of the contract, sustains no injury thereby, but both and the owner of the land treat it as still subsisting until cancelled by them; such neglect of payment furnishes no defence to the maker of the last mentioned note, on the ground of failure of consideration.</p> <p>And if the maker and payee of the note suffer the contract for the conveyance of the land, in which they are both interested, to become forfeited by reason of the neglect by each of performance on his part; and the payee afterwards joins with others in obtaining a new contract for the conveyance of the same land to them upon more favorable terms, this can furnish no defence to a suit upon the note.</p>

The suit was against Moore, as indorser of a note given by Robert W itherspoon to him, and indorsed by the defendant, dated August 12, 1841, and payable on August 15, 1843.

The action was debt against the defendant, as administra-trix of the estate of David Patrick, deceased, intestate, upon a judgment recovered by the plaintiffs against the intestate in his lifetime.

This was a bill in equity originally drawn against Rufus Horton, jr. Jabez Churchill, Randall Fish, and Charles Dolbier, but it was served on Horton alone. It was heard upon bill, answer and proof. The bill was in favor of the late Hon. John Holmes alone, was commenced by him, and prosecuted also by him until after the proof had been taken, and the case set down for argument, when he died. Mr. Appleton was appointed executor of his will, and revived the bill.

<p>When a legal appropriation of a payment lias been made upon one of two or more claims of one creditor against the same debtor, one of the parties, alone, cannot change that appropriation, but it may be changed by the consent of both ; and in such case the indebtedness first discharged is revised by implication of law, where there is no express promise.</p> <p>Where it is competent to show what testimony a witness had given at the trial of a former suit between the same parties, it is not necessary to call the same witness to prove it, although he is then present in Court, and was called at the former trial by the same party who would now show what his testimony then was, but it may be shown by other witnesses.</p> <p>Where a witness is called to prove the consideration of certain notes, not declared on in the present suit, and the appropriation of certain payments, and produces a daybook and legcr, kept by him and belonging to the party calling him, to enable him to testify with more accuracy, and it appears from him that there was also a journal kept, containing an abstract of the daybook, not present, this does not prevent the witness from giving such testimony, without producing such journal.</p>

Money had and received. The writ was dated Feb. 27, 1844. The general issue was pleaded, with a brief statement, that the supposed cause of action did not accrue within one year next before the commencement of the suit. On Jan. 23, 1833, J. & A. Conant loaned the sum of fifteen hundred dollars to the plaintiff and G. & H. Pierce, and took their note therefor, payable on demand, with interest annually. This note was afterwards indorsed by J. & A. Conant to the defendant.

This was an action of the case, wherein the plaintiff claimed damages for the loss of service of his daughter Caroline, and for medical aid furnished, occasioned by an injury as was alleged, caused by the carelessness and improper conduct of the defendant, while traveling upon the highway in Gorham, on Nov. 7, 1843.

Whit of entry demanding a strip of flats ground in Portland, situated easterly of and near to Long Wharf, and extending from a line passing by the end of Milk Wharf to low mater mark. On June 26, 1796, John and Lucy Nichols made a deed to-Nathaniel Deering; and the main questions in controversy between the parties grew out of the construction to be given to that deed.

<p>Assumpsit against W. T. Everett, one of the makers of a note of which a copy follows : —</p> <p>“Harrison, April 11, 1837. For value received we jointly and severally promise to pay John Gammon or order, forty dollars on demand after one year from this date, at McWain’s Mills, so called, in Waterford, with interest.</p> <p>“ William T. Everett,</p> <p>“Hiram Everett.”</p> <p>At the trial in the District Court, Goojdenow J. presiding, the plaintiff read the note in evidence to the jury, and contended that he had supported his action thereby, without further proof. The Judge ruled, that it was incumbent upon the plaintiff to prove a demand of payment of the note, at the maturity thereof at McWain’s Mills ; and, as the plaintiff offered no such proof, ordered a nonsuit. The plaintiff filed exceptions.</p>

<p>The County Commissioners have power under the Revised Statutes, (c. 25, § 34,) to approve and allow of a town way, as laid out by the selectmen, leading from one town road to another town road and passing through the land of the applicant under his possession and improvement, if the town shall unreasonably refuse or delay to approve thereof.</p> <p>As a petition for a writ of certiorari is addressed to the discretion of the Court, the writ will not be granted on account of errors in mere matter of form. The Court, therefore, will not grant such writ, where there is an omission to state upon the record of the commissioners, that the refusal of the town to confirm the doings of their selectmen was unreasonable, when the application to the commissioners stated that the refusal was unreasonable, and where it does not appear that the laying out of the road was inexpedient or injudicious.</p>

A STATEMENT of the pleadings in this case will be found in the opinion of the Court, and need not be repeated. contending that the rejoinder was a departure, because it introduced new matter not before stated, or in any manner referred to. 2 Wils. 96; l Wils. 122 ; 4 T. R. 504; 2 Saund. 84, note 1; 14 Johns. R. 132 ; 1 Chitty’s PI. 140 ; 20 Johns. R. 153 ; 6 Mass. R. 57 ; 16 Mass.

Exceptions from the Western District Court, Goodenow J. presiding. Case against the defendant, as a deputy sheriff of the county of York.

<p>Trespass for taking and carrying away and converting to their own use a horse, wagon and harness. Whittemore, as a deputy sheriff, and the other defendant, as his servant, justified under an attachment of the same articles as the property of William F. Welch. The facts appear in the opinion of the Court.</p> <p>There was evidence offered by the defendants tending to prove, that the mortgage bill of sale to the plaintiff was fraudulent as to the creditors of William F. Welch, and by the plaintiff tending to show, that it was bona fide.</p> <p>The counsel for the defendants contended, that the general property was in W. F. Welch; that he was in the actual possession thereof, and that at the time of the attachment, he had the right of possession ; and that this action of trespass could not be maintained ; and requested the Court to give the jury the following instructions : —</p> <p>1. That if they believe, that William F. Welch was in possession of the property attached, at the time of the attachment, and that the right of possession of the property at the time was in said William, and also that the general property was then also in him, that this action of trespass could not be maintained.</p> <p>2. That the general property being in William F. Welch, there was an attachable interest; and if the jury believed, that he was in possession, and having the right of possession, the officer had the right to attach the property, and his subsequent refusal to deliver the property could not make his original lawful act a trespass, or make the defendant a trespasser by relation.</p> <p>declined to give the instructions requested.</p> <p>The verdict was for the plaintiff; and the defendant fded exceptions.</p> <p>contending, that the plaintiff, as mortgagee, had not the possession nor the right to the possession at the time of the attachment; and therefore could not maintain this action of trespass. The plaintiff’s right to take possession did not exist until after the attachment. A demand by the plaintiff, afterwards, could give the plaintiff no right to consider the original taking a trespass. Chitty’s PL <§> 167, 176; 1 T. R. 480; 8 Johns. R. 432; Ingraham, v. Martin, 15 Maine R. 373; Freeman v. Rankin, 21 Maine R. 447; 2 Pick. 121; 3 Pick. 255.</p> <p>The statute abolishing the distinction between trespass and trespass on the case, applies only to actions on the case for consequential damages, and not to actions of trover.</p> <p>contended that the action of trespass, properly speaking, could be maintained, and cited 22 Maine R. 234 ; 18 Maine R. 127; 15 Maine R. 48.</p> <p>But if trespass could not, case could have beep. 18 Maine R. 87; 16 Pick. 462.</p> <p>All distinctions between trespass and trespass on the case are abolished by statute. Rev. St. c. 115, § 13.</p>

<p>Writ oe entry. The demandant claimed under a levy upon the premises as the property of Arnold Powers, Nov. 28, 1842. The tenant claimed the same under said Powers, by a conveyance from him to E. C. Bartlett, dated Feb. 4, 1835, and from Bartlett to her. The demandant denied, that this latter deed was duly executed, and contended, that if proved, the deeds were fraudulent and void as to creditors.</p> <p>The tenant offered in evidence a deed from Bartlett to her, dated June 19, 1843, purporting to have been executed in the presence of Charles Ewell and Robert Vose as subscribing witnesses, and to have been acknowledged in the County of Norfolk and Commonwealth of Massachusetts before said Vose, as a Justice of the Peace. The counsel for the tenant, who resided in the County of Oxford, testified, that he had made inquiry of individuals in the County of Kennebec, and in other places, and of all persons he thought might know any thing respecting the subscribing witnesses to the deed, and did not, and could not learn, that any such persons had ever resided in this state; and that he had reason to believe, that if the subscribing witnesses were living, they resided in Massachusetts. The demandant proved, that Bartlett, although residing in Massachusetts, had visited the town in the county of Oxford in which the tenant lived since the commencement of this suit, and remained there for several weeks. The tenant then offered to prove the handwriting of Bartlett. The demandant objected, that such proof was inadmissible, unless the tenant first produced a subscribing witness, or proved the handwriting of one. Shepley J. presiding at the trial, ruled that proof of the handwriting of Bartlett, under these circumstances, was admissible. A verdict having been returned for the tenant, the demandant filed exceptions to this ruling of the .fudge.</p> <p>Woodman, pro se, contended that, the tenant had introduced no evidence, sufficient to authorize the admission of the testimony received by the Judge, on objection made. There was no evidence, that sufficient inquiry had been made, to dispense with the production of the subscribing witnesses. The opposing party is entitled to the benefit of the examination of the subscribing witnesses as to other points. There is no difficulty in obtaining the testimony of such witness, by deposition, in other States of the Union, and it should be done. Nor did the counsel make a full inquiry, whether the witnesses could be found within the State. 1 Stark. Ev. 322, 334; 5 Cranch, 14; 4 East, 54; 9 Johns. It. 136: Overton, 255; 1 Greenl. 61.</p> <p>The handwriting of the witnesses should have been proved, -or the inability to do so shown, before proof of the handwriting of the grantor was admissible. 17 Maine R. 65 ; 1 Greenl. 61; 7 T. II. 260; Dougl. 73 ; 1 Bay. 255; 2 Bay. 481 ; 2 McCord, 531; 2 East, 183.</p> <p>Where the attesting witnesses to a deed do not reside within the State, and are not found within it at the time of trial, the deed may be proved by showing the signatures to be genuine. 1 Phil. Ev. 42 L; 1 Greenl. 60 ; 11 Mass. R. 309 ; I Greenl. Ev. § 575 ; 13 Wend. 178.</p> <p>Proof of the handwriting of the grantor, in such case, is more satisfactory, than of the subscribing witnesses to a deed; and is admissible, both on authority and principle. Valentine v. Piper, 22 Pick. 90.</p>

The action was of dower, in which the tenant pleaded a release of dower, and also that there were no rents and profits to the estate, wherein dower is claimed, during the coverture, the same having been in a wild and uncultivated state. At the trial, before Shepley J. the marriage, death, seizin of the husband, under whom the tenant claims, during coverture, and a séasonable demand of dower upon the tenant, were admitted.

Writ or entry. From the agreed statement of facts it appeared, that on October 31, 1835, E. L. Osgood conveyed a tract of land, including the demanded premises, to Jonathan H. Ward, then husband of the tenant, but now deceased; that at the same time Ward mortgaged back the same land to Osgood to secure the consideration therefor; that afterwards, on Oct. 26, 1838, Osgood was liable as surety on a note to the demandants for the sum of $1047,59; that he agreed with Ward to…

<p>This was a review of an action commenced by Hazen against Thompson to recover the sum of {$29,45, alleged to have been rendered as a physician and surgeon. The precise time when, does not appear, but the services were rendered sometime between the first day of September, 1840, and the first day of August, 1841.</p> <p>The parties agreed upon a statement of facts-; from which it appeared that the services charged were performed; that Hazen attended two courses of medical lectures at Hanover and at Brunswick, in 1839 and 1840; that since the performance of the services and before the commencement of the original suit, Hazen has received from the selectmen of the town where he then resided, being a different one from that in which he lived when the services were rendered, a certificate that it had been satisfactorily proved, that Hazen was a person of good moral character ; and also that he received from the Medical Institution at Brunswick, in this State, a medical degree, his diploma being in the common form and bearing date September 1, 1841.</p> <p>This statement was made in the District Court; and the parties there agreed, that if the plaintiff was entitled to recover, that the defendant should be defaulted; and if not, that the plaintiff should become nonsuit; and that either party might appeal.</p> <p>contended that under the provisions of the St. of 1838, c. 353, the original action could not be maintained. The obtaining of the certificate is a condition precedent to the right of the plaintiff to “ collect,” or obtain payment for services as a physician and surgeon. A subsequent proceeding, cannot relate back to the commencement of an action, so as to make that a right of action which was not so, at its commencement. Jackson v. Hampden, 20 Maine R. 37 ; Clark v. Peabody, 22 Maine R. 500.</p> <p>The St. of 1838, is repealed by Rev. St. c. 22, and another takes its place. This last, statute affects the remedy only, and is retrospective in its operation. It includes all services of the nature described, for all past time; and in exact terms requires the certificate to be before performance of service. Hewett v. Wilcox, 1 Mete. 154; Bigelow v. Pritchard, 21 Pick. 169.</p> <p>The object of these statutes was to guard against the evil effects of unskilful practitioners, and mem of bad character. A man may acquire skill afterwards, and obtain a diploma, or may change his character or place of abode, and obtain a certificate. But this does not prove that the person was a suitable practitioner years before. Neither the certificate nor the diploma, obtained afterwards, will aid the plaintiff in his suit. The qualification to practice must exist at the time of the practice, and no after proceedings can enable him to recover payment.</p> <p>remarked that the legislature had been continually enlarging the right of persons to recover payment for medical services, and adverted to the acts upon the subject prior to the St. of 1838, c. 353. Under this latter statute, as well as under Rev. St. c. 22, <§> 2, the plaintiff seeks to recover.</p> <p>In the absence of all statute provisions, Hazen would have a right at common law to recover. Hewett v. Wilcox, 1 Mete. 154.</p> <p>The question then is, whether the certificate of good moral character from the selectmen is, under the second section of the Stat. of 1838, which was read and which is given in the first paragraph of the opinion of the Court, is a condition precedent to the performance of the services, or to the recovery of payment therefor. He contended, that it was sufficient, if the certificate was obtained prior to the commencement of the suit. No qualification as to skill is required and it is immaterial whether the certificate was a month before or after the performance. The moral character is of greater importance in the conduct of the man in the recovery of payment, than in the performance of services. The language of the statute plainly shows this to be the meaning. The word “first” must refer to the word “ collect,” and to nothing else without destroying the sense of the section ; and the word “ resides,” is used, and not resided, as it would have been under any other construction. So the use of the word “ is,” confirms this view. The statute is remedial, restoring a right which had been taken away, and should be construed liberally; it is in derogation of the common law, and should be construed strictly.</p> <p>The St. 1838 is repealed, it is true, as has been said, but the remedy is saved by the second section of the repealing clause. Treat v. Strickland, 23 Maine R. 234.</p> <p>The original plaintiff is entitled to recover under the Rev. St. c. 22, <§> 2. It provides, that the disqualification to recover payment for services performed, shall not apply “ to any physician or surgeon, who has received, or may hereafter receive a medical degree at some public institution within the United States.” The original plaintiff had received a medical degree before the commencement of the suit.</p>

Wbit of entee. To support their action, at the trial, before Shepley J., the demandants introduced in evidence a judgment and execution in their favor against Christopher Benner, and a levy upon the demanded premises.

The action was covenant broken on an indenture made and concluded on the 28th day of June, 1837, by and between the plaintiff of the first part, the defendants of the second part, and creditors of said Howe, who signed and sealed said indenture, of the third part. The action was opened for trial before Sheplex J. and came before the whole Court on exceptions to his ruling.

Trespass quare clausum for breaking and entering into the plaintiff’s close in Bremen, subverting the soil, and carrying away stones, &c. It appeared that the plaintiff had been for many years in possession of a tract of land used as a pasture, through which there had been a traveled way, although gates or bars had been kept across it.

<p>The right to have one demand set off against another, in this State, is wholly regulated by statute.</p> <p>In a suit by an indorsee against the maker of a promissory note, indorsed when over due, the latter is not entitled, by the Rev. Stat. o. 115, to set off in payment thereof a note given by the promisee to a third person, and by him indorsed to the defendant.</p>

The writ contained a count upon a promissory note, made by defendant, and payable to the plaintiff; and a count for money had and received. The plaintiff read the depositions of George Clark and Francis J. Clark. They were objected to by the defendant.

Trespass to recover the value of an ox wagon, a double harness, a sleigh and a horse. The defendant admitted the taking, and justified it as an officer, on executions against John Lothrop, as whose property he had seized and sold the same. This action was referred in the District Court to three referees.

The parties agreed upon a statement of facts, from which it appeared that in December, 1843, the defendant was in debted to the plaintiff on account in the sum of $37,50; and still remains so, unless the same is discharged on the following state of facts. One Perry, a bankrupt, held a note against the plaintiff of about $200, which in December, 1843, was advertised to be sold at auction by the assignee of Perry.

<p>It is generally true, that if one of two joint contractors pays money, for which they may have made themselves jointly liable, an implied undertaking on the part of the other is inferred, that he will reimburse his co-promisor for the one half of the amount so paid. But if the debt were originally due from some third person, and the security had been given therefor by the co-promisors in consideration of funds furnished by him, sufficient for the purpose, with which it was agreed the debt should be paid, and such funds had been entrusted to the management of him who had been compelled to pay the amount in discharge of the joint promise, and he had not been careful to appropriate the funds according to agreement, no promise could be implied, that he should be reimbursed for any portion of the amount he might have been compelled to pay on the joint contrast.</p> <p>Where co-promisors, being assignees of the property of an insolvent man, give their note to a third person, as such assignees, in payment of a debt before due from their assignor, with a reliance for the means of paying it upon the funds in their hands by virtue of the assignment, specially appropriated for that purpose, equity would consider the assignees as substituted for such third person in reference to such funds, and the law could not consider them otherwise.</p> <p>If one has an interest merely in the question, as he may stand in a similar condition as that of the party calling him, he is a competent witness.</p>

Bill in equity. The substance of the bill, answers and proof is stated at the commencement of the opinion of the Court. said that on the whole they had concluded to acquiesce in the report of the master, and therefore moved that the report be accepted, and that a decree be passed to carry it into effect. objected to the acceptance of the report; and in his argument in support of his objection, cited 3 Barb. & H. Eq. Dig. 28, 32; 3 Paige, 478; 6 Johns.

This was a writ of error brought by Mathews to reverse a judgment against him before a justice of the peace, in an action originally brought by Bowman against him to recover a fine for non-appearance at a regimental review, he being, as was alleged, a member of the D company of militia in the second regiment, first brigade, and second division of the militia of this State, or east company of militia in the town of Waterville, and liable to do militia duty therein.

Ckowelu was indicted as a common seller, at retail, of rum, brandy, &c. without license. At the trial before RedtNGton, District Judge, the County Attorney requested the Judge to rule, that if Crowell would rely upon his having been licensed, it was incumbent on him to prove it.

<p>Wliere an officer attaches goods, and takes a receipt for the redelivery thereof on demand, or payment therefor, and leaves them, without removal; if he has the power to retake the property by virtue of the same precept without the consent of the owner or the reeeipter, which may well be doubted; he must, in order to preserve the attachment, retain the control thereof himself, or by his servant, or have the power of taking immediate possession. If the possession is abandoned, the attachment is dissolved.</p> <p>If the reeeipter has become the lona fide purchaser of the same goods, subject to the attachment, and has taken possession thereof, he does not forfeit his rights thereto by suffering the officer to take possession of the same, without resistance, by virtue of another writ against the same debtor, put into his hands after the purchase; nor by taking the receipt, when handed to him by the officer, without any agreement or understanding in relation thereto, and immediately thereupon offering to the officer to restore the receipt to him.</p> <p>If all the goods are taken into the possession of the officer as attached by virtue of the second writ, but a part only are returned on that writ as attached, the officer is liable for the portion of the goods not returned, as well as for the rest, without any previous demand by the owner.</p> <p>Where the goods of one man are attached and taken by an officer on a writ against another person, and afterwards again attached and taken in the same manner on a writ in favor of a different creditor, a release by the owner of all claim to damages in consequence of the second attachment, in consideration of its relinquishment, has no effect upon a suit to recover damages caused by the first taking.</p> <p>Where goods are tortiously taken by an officer, he is liable to the owner for all the damages sustained thereby.</p>

This action was a writ of entry, demanding a tract of land in Winslow, containing one acre, in an irregular form, on which stood a dwellinghouse, bam and other buildings. The case came before the Court upon the following report of the trial before Whitman C. J. This is a real action wherein the demandant claimed one acre of land as set forth in his writ. The general issue was pleaded.

At the trial, before Whitman C. J. after the examination of many witnesses, and the introduction of deeds and copies of levies of executions, it was agreed, that upon that testimony and those papers, or such portion thereof, as should be considered legally admissible, the Court should have the liberty to draw such inferences as a jury might draw, and enter such judgment in the premises, as they should determine to be proper.

<p>Whit op ENTRY. The demandants, at the trial before Whitman C. J. introduced a deed from I. Redington, as-signee in bankruptcy of the tenant, to them, dated August 15, 1843, of all the right, title and interest of the tenant in and unto the demanded premises “by virtue of the last will and testament of Thomas Smiley, father of the said Thomas Smiley, the bankrupt; ” also the proceedings in bankruptcy, authorizing the sale by the assignee ; and also a copy of the last will and testament of Thomas Smiley, father of the bankrupt, duly proved and allowed in August, 1816, of which the following is a copy: —</p> <p>“ Know all men by these presents, that I, Thomas Smiley, of Winslow, in the County of Kennebec, Gentleman, do by this my last will and testament grant, sell and convey to Thomas Smiley, Jr. all my real estate consisting of land in Winslow and Clinton, in the County of Kennebec, likewise the saw mill in said Winslow, and the privileges thereunto belonging upon conditions, reserving as follows : —■</p> <p>“ First. — The southeast room and chamber, the north bedroom in the chamber, and one half of the privileges to the kitchen, said rooms to be finished at the expense of the said Thomas, Jr./as soon as is convenient, and shall be the residence of Ruth W. Smiley, my wife, as long as she shall live or wish'to make the same her home, provided, however, she shall not be entitled to receive any family into the above mentioned rooms to live with her, and shall also have necessary room in the cellar.</p> <p>“ Second. — And that Ruth W. Smiley, my wife, as aforesaid, shall the remainder of her life be maintained without hard labor, she shall therefore be entitled as follows; — 1st. To fifteen bushels of bread kind ready ground; — 2d. To have two cows kept summer and winter; — 3d. To have one hundred pounds beef and one hundred pounds pork ; — 4th. To have three pounds tea and three pounds of coffee of a good quality: — 5th. To have twelve pounds sugar and four gallons molasses; — 6th. To have a sufficient quantity of garden sauce; —7th. To have one fifth part of the apples growing on the trees now bearing; — 8th. To be at all times provided with water and suitable wood in such quantity as shall be necessary, all of which shall be provided yearly and at such, times as shall be necessary and shall bo entitled to a horse to ride as much as is convenient. As a person in the decline of life is subject to sickness, it is my earnest desire, that she at all times should be provided with all the necessaries of life, and that her declining years be made as comfortable as possible. — And to you, Thomas, should you live to .undertake the important duty of taking care of your aged mother, I trust you will, with divine assistance, gratify the wishes of a kind father, that after his body is consigned to the silent tomb, and could the part that never dies look down upon you it might see you following the example of the just, and with the fortitude of the good man behold you leading •those with whom you have to do a most happy and agreeable life. And further, to your mother, it is my will, that she have the disposal of the sum of two hundred dollars that was left her of her father’s estate, to be paid you out of my estate. And to Joel C. Smiley, as he has two years of his time, one horse worth fifty dollars, and at sundry times I have paid about one hundred and seventy-eight dollars for him, and settled an action commenced against him by Polly Young, worth fifty dollars ; it is my will, therefore, that he have the sum of five dollars, to be paid him in one year after my decease. And to Hannah S. Libby, the sum of seventy-five dollars to be paid in the following manner, twenty-five dollars in one year after my decease, twenty-five dollars after her mother’s decease and twenty-five dollars in one year after the decease of William Richardson and wife; and to Ebcnczer Woodsum, twenty-five dollars in one year after my decease; and to Betsey H. Shorey the sum of sixty dollars, thirty dollars in one year and thirty dollars in two years after my decease; and to Samuel P. Smiley, the horse which he now has, worth sixty-five dollars, the remainder of his time till twenty-one, and twenty-five dollars in one year after my decease; and to Park Smiley, the remainder of his time till twenty-one years and five dollars in one year after my decease ; and as there is the sum of about four hundred dollars of debts to be paid out of my estate, it is therefore my will, that the time of one year be allowed (unless they be discharged before my decease) for them to be paid in before any of the above mentioned sums shall be paid to my several children. And to Sally Smiley, four sheep and to have them kept summer and winter, and after her mother’s decease, should she live unmarried, also one cow kept summer and winter, and shall have a right to dispose of the calves and lambs; likewise the use of the southeast chamber and north bed room in the chamber, and privilege of baking, washing and cooking in the kitchen, should she wish, proper cellar room, all which she shall retain while unmarried and no longer, but should she ever be married she shall receive the sum of thirty dollars; and to Sidney and Seneca Smiley it is my will and I do therefore by this instrument give, grant unto them their heirs all my real estate in the town of Sidney and County of Kennebec, consisting of about fifty acres of land and known by the south half of the McNeil lot, and bought by me of David Smiley, to have and to hold said land by them their heirs forever, for their use and benefit, and further, should any unavoidable accident happen to any of my children, so that they should be unable by labor or otherwise to support themselves, it is my will that they receive support from my estate while unmarried, and no longer, but shall have a right to a home should they wish or at any time be unwell, so as to need assistance while unmarried, by making reasonable compensation, is their condition such that they can, therefore as soon as Thomas Smiley, Jr. shall have paid all the lawful demands against my estate, and the aforementioned sums, to my children and Eben’r Wood-sum, or to their and his heirs, and otherwise fulfilled this my last will and testament, he shall by this instrument be entitled to all my real estate and the privileges thereunto belonging, in the towns of Winslow and Clinton, in the County of Ken-nebec, and the saw mill in the town of Winslow, to have and to hold the aforementioned real estate to him and his heirs for their use and benefit forever; and I now profess to be in possession of all my mental faculties. I do hereby appoint Thomas Smiley, Jr. of Winslow, in the County of Kennebec, to be executor of this my last will and testament.”</p> <p>The parties agreed, that the following statement of William Stratton should be admitted as evidence.</p> <p>Thomas Smiley, the tenant, went into the possession of the premises upon the decease of his father, and has continued in the occupancy and improvement thereof, treating the same as his own; that he has cultivated the farm and carried on the saw mill; that the saw mill was burned down, and he rebuilt it; that the witness knew, that for several years after the decease of his father the tenant’s mother lived with him in the house on the farm, but that he was not able to testify whether or not, more recently, she had or had not lived with him.</p> <p>It was admitted by the parties, that the mother of the tenant died at the house of Samuel Smiley, on June 20,1843.</p> <p>It was agreed that the full Court, upon consideration, might enter such judgment, or order such proceedings in the premises, as they shall determine to be proper, they being authorized to draw such inferences from the testimony as a jury might draw.</p> <p>contended that the conditions were a mere charge upon the estate, and not conditions precedent to its vesting in Thomas Smiley, the devisee and bankrupt. The devised estate, therefore, passed to the as-signee, and was by him conveyed to the demandants.</p> <p>Whether acts to be performed by the devisee are conditions preceding or subsequent to the vesting of the estate in him, does not depend upon the particular location of the words, or upon any particular expressions taken separately, but upon the intention of the parties, to be ascertained by examination of all the provisions in the whole instrument. The intention should be carried into effect, although it should require some departure from the language of some particular clause. The acts to be performed are to be considered as conditions subsequent, unless such performance necessarily must precede the enjoyment of the estate. 4 Kent, 125 ; 2 Black. Com. 154; Co. Lit. 218; 1 Salk. 170; 1 Hill. Abr. 247, 248 ; Howard v. Turner, 6 Greenl. 108; Currier v. Earl, 1 Shepley, 216; Morion v. Barrett, 9 Shepley, 257; Sayward v. Sayward, 7 Greenl. 210; 5 Pick. 524; 3 Peters, 374; 1 Bac. Abr. 642 ; 7 Mass, R. 229; Stearns on Real Actions, 22, 23, 73 ; 6 Maine R. 42.</p> <p>The various provisions of the will were then examined, and the conclusion drawn therefrom, that it must necessarily have been the intention of the testator, that the tenant should immediately, upon proof of the will, enter into the occupation of the estate, and should forthwith proceed to the performance of many of the onerous conditions, while others were not expected, and indeed could not be performed for many years afterwards. Many of them were of such a character, that the possession and enjoyment of the estate were necessary to the performance thereof.</p> <p>and remarked in his argument, that the title of the demandants depended upon the question, whether the tenant, at the time when he was decreed to be a bankrupt, had any interest in the estate demanded under the will of his father. And this depends upon the question, whether that estate was devised to him subject to conditions precedent, or subsequent.</p> <p>The construction to be given to the will is not affected by subsequent events, but depends upon the state of facts as they existed the day after the probate thereof. The condition in relation to the widow of the testator, had not been performed at the time of the bankruptcy, for she was then alive; and one of the legacies was not to be paid until her decease. If these were conditions precedent, the estate had not vested in Thomas Smiley, the tenant. After referring to the various provisions of the will, it was said, that the estate was charged with many of these provisions; and that it was the duty of the tenant, as executor of the will, independent of any interest he had as devisee, to enter into the possession and occupancy of the estate in that capacity.</p> <p>It was for the testator to determine what he would require before the estate should vest in the devisee, and the time when he should be entitled to it. The lawful intention of the testator is the law of a will. What he makes precedent, cannot be construed to be subsequent. The devisee is to have the estate when he has fulfilled the terms of the will, and by necessary implication, then only.</p> <p>Whether a condition should be regarded as precedent, or subsequent, depends not upon the technical language of a deed or instrument, but upon the nature of the subject matter or transaction, and the intent thence deducible. Acherly v. Vernon, Willes, 153 ; Botham, v. East India Co. 1 T. R. 645.</p> <p>And if this is true as to other instruments, it is emphatically so with regard to a last will and testament. Cruise’s Dig. Title 38, c. 16', § 1.</p> <p>The intention expressed in the will must be considered as the true meaning of the testator, however absurd or improper the conduct might be, in requiring it. Bertie v. Falkland, 2 Yern. 332.</p> <p>He contended, however, that in this case, not only that it was the clear intention, that the estate should not vest in the tenant, as devisee, until all the conditions had been performed, but that in making them conditions precedent, he had acted wisely in carrying into effect his intention of providing for the family. He intended to have the homestead remain in the hands of his executor as a family residence, not liable to be taken from him until he had fulfilled all the trusts to his mother and other members of the family.</p>

<p>The action was trespass quare clausum, and was referred by a rule from this Court to a referee, who made a general report, that the plaintiff had not sustained his action, and that the defendant should recover costs of Court and costs of reference. The referee then proceeded as follows. No copy of the plan, or of either of the deeds referred to in the report, was found among the papers which came into the hands of the reporter.</p> <p>The plaintiff’s counsel having specially requested that the legal points arising in this suit may be presented for the determination of the Court, the following exhibit of the case is hereby presented.</p> <p>This is trespass quare clausum.</p> <p>The plaintiff owns a lot of land, and claims that it is the lot colored red on the plan. But its southern boundary is disputed by defendant.</p> <p>The strip in controversy is painted yellow on the plan. The defendant is in possession of the south lot, claiming it as his own. The dividing line was brought into question. There was much testimony. The plaintiff proved his title by evidence which seemed incontrovertible. The defendant proved his, by evidence equally satisfactory and convincing. The proofs were so balanced, that the referee had no other means of deciding which of the parties owned the “ disputed territory,” than by resorting to the inquiry, “ on whom rested the onus probandiV’ This he supposed to be on the defendant, and the result was, that he decided defendant had not proved his title. If, in law, the onus is on the plaintiff, then the plaintiff has failed to prove his right to the strip.</p> <p>The means which the Court will have for deciding this point will appear hereafter.</p> <p>Upon the foregoing grounds, the referee proceeded to examine the other part of the case, acting on the assumption that the plaintiff owned the debatable strip, and it will hereafter be spoken of as being a part of plaintiff’s lot.</p> <p>Plaintiff owns a tannery mill, which with its flume and the western end of the dam, are on his own land. Eastern end of the dam is on defendant’s lot. This mill and dam were built between 1829 and 1833.</p> <p>A removal by defendant of the part of the dam which stands on his land would destroy the use of plaintiff’s mill.</p> <p>Defendant has a clothing mill on the stream above plaintiff’s dam. It is fed by a dam, which with its predecessor on the same site has stood more than 20 years, prior to the alleged trespass. There has been no abandonment of this privilege.</p> <p>In the summer of 1842, the parties were operating their respective mills. Plaintiff permitted the water, held by his dam, to rise so high as seriously to impede the operation of defendant’s mill. Defendant frequently requested plaintiff to let the water off, so that the back-flow should not injure him. This was not done. Defendant notified plaintiff that ho should let the water off, by hoisting plaintiff’s gate or in some other way, unless plaintiff himself should do it. But plaintiff forbade him to do so. Defendant for that purpose undertook to hoist plaintiff’s gate, but was not able to. He thereupon removed two or three planks from plaintiff’s flume, and let the water oil', doing no greater damage than was necessary to remove the back-flow from his mill. That act is the trespass sued for in this action.</p> <p>To justify that act, defendant relied on his title, as above mentioned, to the land on which the flume stands; and the flume stands on the disputed strip. As above stated, the referee considering the onus of proof to be on defendant, decided that point against him. If the onus was on plaintiff that point is to be decided against Mm.</p> <p>Defendant next contended that, as his mill and dam were the oldest he had a right of priority to the water, and might lawfully break the flume as he did.</p> <p>Referee was of this opinion, unless the legal principle was controlled or rendered inapplicable by other considerations belonging to the case.</p> <p>Plaintiff thereupon contended, that as he owned the land on which defendant’s dam was built, he might remove that dam, and in that way destroy the use of defendant’s mill; and that if he might destroy that use in that mode, he might also do it by back-flowing from the lower dam; inasmuch as it must be quite immaterial to defendant, by which of two modes the damage to his mill should happen.</p> <p>If this should be conceded as a true principle, the referee thought it might be difficult to sustain this action: because defendant by removing that part of the lower dam, which is on defendant’s land, might in like manner defeat plaintiff’s mill. And as to the mode of producing that effect, it could make no difference to plaintiff whether it was done by defendant’s removing the portion of the dam which is on defendant’s land, or by breaking the flume, as was in fact done.</p> <p>There may possibly be some question how much, if any, of the upper dam is on the plaintiff’s land. His deed makes his west line to run ffteen rods, to the stream, thence by the north line of the south (defendant’s) lot, to the starting point. By the plan it appears that said west line, whether it stop at the margin of the stream, or at its centre, or be continued to any other point, in the same direction, will not strike said north line of the south lot, by several rods.</p> <p>Very probably, however, the construction of the deed may be such as to make plaintiff’s west line pass down by the centre of the stream, so as to strike said north line in .that direction.</p> <p>Such a construction would place the east half of the upper dam on plaintiff’s land, and, (unless for its antiquity,) he might be justified in removing it.</p> <p>On this hypothesis, plaintiff might by removing his part of the upper dam impede the use of defendant’s mill. Could he therefore, lawfully, impede it by back-flowing from the lower dam ?</p> <p>In this connection, the antiquity of the upper dam is to be taken into the account.</p> <p>Plaintiff denies defendant’s title to the south lot and claims that he is the owner.</p> <p>It was mortgaged in 1829. The mortgagor conveyed his right to Spaulding in 1831, by a deed of quit-claim, duly recorded. The mortgagor had the possession, and Spaulding continued in possession for a few years, by the mortgagor under him.</p> <p>In 1831, Spaulding purchased (adjoining) north lot of the mortgagee. Thus the possession of both lots was united in Spaulding. The dam was built while that possession continued, the mortgagee being present and making no objection. Between 1835 and 1837, the mortgagee hired and used plaintiff’s mill, under Spaulding’s assignee.</p> <p>In 1835, the mortgagor, notwithstanding his conveyance in 1831 to Spaulding, relinquished in writing on the back of the mortgage, to the mortgagee his right of redeeming, and, for that consideration solely, the mortgagee gave up to him the notes then due, no part of which has ever been paid. There were four notes, the last of which became payable in 1833. At the same time (1835) the mortgagor, who till then had occupied both lots, under Spaulding, left the town, and the mortgagee went into possession and occupation of the mortgaged lot, and he and those claiming under him have continued that possession and occupation to the present time.</p> <p>Defendant has the mortgagee’s title; plaintiff has all the rights which belonged to Spaulding in both lots.</p> <p>The mortgagee never gave any discharge of the mortgage, other than by giving up the notes to the mortgagor in manner above stated. No one claiming under Spaulding has brought any bill in equity or other process, to obtain possession of the upper lot. Defendant contends, that the giving up of the notes under those circumstances did not defeat the mortgage, and that, as the mortgagee went into actual possession of the mortgaged lot in 1835, (which was after the pay day of the notes,) the mortgage was foreclosed in 1838; or at least that he, the defendant, being the assignee of the mortgagee, and being in actual possession, is to be deemed to hold that possession rightfully, as against the plaintiff who is the assignee of the mortgagor.</p> <p>On the other hand, the plaintiff insists that, as he is the assignee of the mortgagor, who after his assignment took up the notes as aforesaid and destroyed them, the' mortgage became inoperative and void, so that plaintiff’s title became perfect.</p> <p>The referee held, that the mortgage was not defeated by the acts of 1835, the notes never having been paid; and that defendant’s possession of the upper lot was rightful. Plaintiff contended, from the abovenamed unity of possession, and, the mortgagee’s acquiescence in building the dam partly on the mortgaged lot, and his subsequent hiring of the plaintiff’s mill, which is fed by that dam, it results in law, that the plaintiff’s mill is entitled to the prior right of the water.</p> <p>The referee held otherwise, on the ground that the dam was built on the mortgaged lot by those who were in possession under the mortgagor as they might lawfully do. But that when the mortgagee afterward took posession, he took it freed from all arrangements made by the mortgagor, &c. And that the hiring of the plaintiff’s mill, for a year or two by the mortgagee could not operate such a grant or license to continue the dam, as would take away from defendant, his priority to the right of water.</p> <p>The following documents are to be referred to. The Plan. Deed, Potter & al. to Small, 1829. Mortgage back of same date. Small to Spaulding, 1831. Potter to Spaulding. 1831. Spaulding to Otis, 1835. Potter to Small, 2d, 1841. Small, 2d to defendant, 1842. Otis to plaintiff, 1842.</p> <p>The referee’s intention was, upon the foregoing facts and the documentary evidence, to decide the action on legal principles.</p> <p>If the Court shall be of opinion the above written award is in accordance with those principles, the said award is to stand.</p> <p>If the Court, however, shall think the plaintiff entitled to recover, the award is hereby made that the plaintiff recover the sum of $25, damage, and costs of Court to be taxed by the Court and costs of reference.</p> <p>Full and able arguments in writing were furnished to the Court by</p>

<p>If the grantee of land to which his grantor had no other right than under a bond, afterwards assigned to the grantee, containing an agreement to convey the same on the payment of a, certain note, brings his bill in equity against his grantor and the obligor in the bond and a creditor of the ob-ligor who had levied an execution upon the laud as the obligor’s property, seeking a conveyance of the land to him, he will not be entitled to relief, unless he shows a performance, or tender of performance, oí the conditions of the bond before the institution of his process.</p>

Bill in equitjt. The defendants, Josiah Little and Ephraim Wood of Winthrop, and Josiah Little of Newbury, were co-partners doing business at Winthrop. The parties made the following agreement in reference to the case.

This case came before the Court on exceptions on the part of the plaintiff, and on a motion for a new trial because the verdict was against evidence. The motion was not filed until the third day after the verdict was returned, and there was no report of the evidence, other than what appears in the bill of exceptions.

<p>Asa Williams and others petitioned to the probate court, that a guardian might be appointed over the said George Reed ; and after notice and a hearing of the parties the Judge of probate decreed that the applicants take nothing by their application, and that the same be dismissed.</p> <p>Luther Reed, a son of George Reed, then presented a petition to the Judge of probate, stating that Williams and others had presented said petition, and the proceedings thereon ; and further, that he, relying upon their judgment and advice, and in order to save his father from further imposition and fraud, was induced to summon several witnesses, take certain depositions, and incur much expense, amounting to $26,38; that upon the hearing it was made to appear, that said George Reed had been exposed to certain frauds and impositions, which, although not enough to authorize the issuing of letters of guardianship, would not have been disclosed but for the efforts of the petitioner in the procurement of the testimony ; and pray-ed, that he might be allowed to tax the costs against- George Reed, and that execution might issue therefor.</p> <p>After a hearing of these parties, it was ordered and decreed by the Judge of probate, “ that the sum of $14,70, be allowed to said Luther for said costs, and that said George Reed be, and he hereby is, ordered and directed to pay said petitioner the said sum of $14,70, as costs accruing upon the application for the appointment of a guardian unto the said George Reed.”</p> <p>From this decision George Reed appealed, assigning as rea sons for his appeal: —</p> <p>1. The Judge of probate has no jurisdiction to award costs in this case, no estate being the subject of controversy, it being a question merely as to the alleged personal disability of said George Reed.</p> <p>2. The said George Reed being the prevailing party, it is without precedent, that costs should be awarded against him.</p> <p>3. The award of costs is objected to on the ground of expediency, the complainant being the son of the appellant, and the complaint not being sustained.</p>

Assumpsit on a promissory note, signed by the defendant, dated May 14, 1836, for At the trial, before RedingtoN, District Judge, the defendant offered certain depositions, and the plaintiff objected to the admission thereof, on the ground, that the justice before the depositions were taken had certified, that the answers therein were written by him, and had not certified by whom the interrogatories were written.

Exceptions from the Middle District Court, Redington J. presiding. This was a special action on the case, founded upon the 49th section of liev. Stat. c. 148, “ Of the relief of poor debtors,” charging the defendant with knowingly aiding Charity Vance in the fraudulent transfer of her property to him in order to secure the same from her creditors.

Exceptions from the Middle District Court, Redington J. presiding. Held: in order to charge the trustee, “ there must appear to be, from the disclosure, a clear admission of goods, effects and credits, not disputed or controverted,” &c. There is, in this disclosure, “ no clear admission of goods, effects, &c. in the hands of the trustee, not disputed, or controverted; on the contrary, the trustee states,…

This was a bill in equity, and came before the Court upon a demurrer thereto.

The parties agreed upon a statement of facts — from which it appeared, that the plaintiff, on March 2, 1844, made a complaint and procured a warrant against the defendant, under the provisions of Rev. St. c. 128, § 5, entitled £! of forcible entry and detainer ; ” that the legal title to the premises was in the plaintiff, and on March 24, L841, the defendant took of the plaintiff a written lease of the premises for the term of one year, to commence on April 1, 1841; that the…

This was a process under the fifth section of the statute of forcible entry and detainer, Rev. Stat. c. 128. The complaint and warrant were dated May 22, 1843. At the trial in the District Court, it was proved or admitted, that the plaintiff owned the farm in Sidney, called the Barrows farm, and demised the same by a written lease to one Cowan for the term of one year, commencing April 1, 1841.

<p>Where a road extends into two counties, and the majority of the commissioners of both counties, at a legal meeting thereof, under the provisions of Rev. Stat. c. 25, te shall adjudge it to be of public convenience and necessity to lay out such highway,” it is not left discretionary with the commissioners of one county, to locate tho highway within their county, or not; but it is tlfeir duty to proceed and lay it out in conformity to the adjudication.</p> <p>And if a county or town road has been previously laid out over a part of the same route, it furnishes no sufficient excuse for a refusal to locate the highway there under the adjudication of the commissioners of the two counties.</p> <p>A private individual can apply to the Supreme Judicial Court for a writ of mandamus to courts of inferior jurisdiction in those cases only, where he has some private or particular interest to be subserved, or some particular right to be pursued or protected by the aid of this process, independent of that which he holds in common with the public at large. It is for the public officers, exclusively, to apply for such writ, where the public rights are to be subserved.</p> <p>If it be the duty of the County Commissioners to locate a road, yet a writ of mandamus will not be granted, to command the performance'of such duty, on the petition, merely, of one of the original petitioners for the road, who has no greater interest than the rest of the community in procuring such location.</p>

<p>Exceptions from the District Court, Redington J. presiding.</p> <p>This was “ an indictment for neglecting to keep in repair a certain public highway, so called, in said town.”</p> <p>On the part of the State it was proved, that the way had been used as a road for more than thirty years; that it now is, and always has been in the summer seasons, during said term of time, encumbered with gates and bars; that said way never has been fenced out as a road; that within six years next before the finding of the indictment the same highway had been included within the limits of a highway surveyor of the town, and repairs made thereon under his direction.</p> <p>The presiding Judge instructed the jury, that this evidence, if believed, was sufficient to prove that the way was duly located, so that the town was bound to keep it in repair. The verdict was guilty; and exceptions to the instructions of the Judge were filed in behalf of the town.</p> <p>among other grounds, contended that the indictment could not be supported, because it was alleged in the indictment that the road was a “ public highway,” and the user of the way proved, was a mere private way, across which there had always been gates and- bars. This might, perhaps, give individuals the right to use this as their private way, but could not make it a public highway. Com. v. Low, 3 Pick. 408.</p> <p>The indictment cannot be maintained, upon this proof, under Rev. Stat. c. 25, § 101. The language of the statute, in this section applies only to the case of injuries to individuals, and not to a neglect to put or keep the road in repair. If it applies to a case like this, the practical operation will be, that a majority of the selectmen of a town, and one surveyor of highways, may lay out a road which the town is bound to keep in repair, in defiance of the majority of the inhabitants of the town and of the County Commissioners. And in this way the owner will lose his land without any means of obtaining compensation therefor.</p>

<p>Assumpsit upon an instrument of which the following is a copy: — “ Somerset ss. Clerk’s office at Norridgewock, Nov. 13, 1839. To Mark S. Blunt, Esq. County Treasurer.</p> <p>“Pay to Ephraim Woodman out of the treasury of said county, the sum of one hundred and forty-three dollars and eighty-three cents, for damages awarded him by a jury authorized by the County Commissioners, on account of the location of a road passing through his land in the town of Phillips, on the petition of John L. Blake & others, Oct. Term, 1834, as per order of the County Commissioners, March Term, 1838, when evidence is produced, that the road is opened, that evidence being now produced and on file.</p> <p>“ J. Gould, Clerk.”</p> <p>It appeared in evidence, that on the day of its date, the plaintiff presented the proceedings in relation to the road to Mr. Gould, clerk of the courts for the county of Somerset, and requested an order for the payment of his damages. The clerk objected to giving the plaintiff the order, on the ground, that it had been said that the county of Franklin, and not the county of Somerset, ought to pay the damages. The plaintiff then said that he would see, that the clerk was exonerated from all blame, and would not enforce the order, if the County Commissioners should refuse to pay it. The order was drawn, and presented to the county treasurer on the same day, and payment refused.</p> <p>The substance of all the facts appearing on the papers is stated in the opinion of the Court. The Court was to decide upon the rights of the parties upon the records and evidence, or such of it as was admissible, and enter a nonsuit or default.</p> <p>for the defendants, objected to the plaintiff’s right to recover ; —</p> <p>First. Because the road was not made upon the plaintiff’s land where it was located by the County Commissioners.</p> <p>Second. Because, before the road was opened and made, the territory over which it passes was incorporated into a new county by the name of Franklin; and because, after such incorporation, such proceedings were had by the Commissioners of the new county as made the proceedings in relation to this road the acts of said new county ; and that county should pay the damages, if the plaintiff was entitled to any. The subsequent proceedings should have been proceeded on by the Commissioners of the county of Somerset. The act creating the new county expressly provides, that all unfinished business should be proceeded on and finished in the county where it might be pending.</p> <p>Third. Because the order on which this suit is founded was improperly drawn by the clerk, without authority; and the plaintiff received it upon a condition, which he has not complied with. His remedy, if any he has against the county of Somerset, is by an action of debt upon the judgment, and not upon this order.</p> <p>contended that the first objection made to the plaintiff’s recovery was groundless, because the competent tribunal, the County Commissioners, had adjudicated upon that question, and decided that the road was made where it was located. The parol evidence to show, that it was not so located was inadmissible. 8 Mass. R. 408; 7 Mass. R. 518 and 498 ; 8 Mass. R. 146; 1 Greenl. Ev. 565. All proceedings in relation to the location of county roads are to be deemed valid, however erroneous and imperfect they may be, until quashed on a writ of certiorari. 2 Greenl. 61. But were the question an open one, permanent monuments are to govern in the location of the road, as well as in a deed of land, in preference to points of compass, or length of lines.</p> <p>In reference to the second objection, it was said that the proceedings under the original petition, pending in the county of Somerset, were entirely ended, and nothing more could be done under that petition. Any new process, relating to this or any other road within its limits, must be instituted in the county of Franklin when it became a county. The petition to have the road opened is a new proceeding.</p> <p>As to the third objection, it was said, that when the report was accepted by the County Commissioners, awarding damages to the plaintiff, to be paid, when evidence was produced that the road was opened, there was a sufficient order for the payment of these damages by the County Commissioners. The plaintiff was entitled to his order as a matter of course, without any restrictions upon him, as to the use he would make of it. Evidence of the use to be made, or not. to be made of the order was inadmissible. If the plaintiff had brought his action upon the judgment, the defendants would have successfully resisted that suit by showing a payment by the giving and acceptance of this order. The only question made by the defendants has been, whether the damages should be paid by the county of Somerset or by the county of Franklin. The proceedings were finished, and the damages assessed, while the land was in the county of Somerset; and that county should pay them.</p>

<p>The arguments were by</p>

Case against Fowler as late sheriff of this county. The writ was dated August 25, 1842. With the general issue, a brief statement was filed by the defendant, setting up the statute of limitations as a defence. The original count in the declaration complained, that the defendant was liable on account of certain acts of his deputy, one Kimball, without claiming to recover by reason of any defaults by Fowler personally.

<p>This was a bill in equity against John R. Clark, Charles H. Clark and Horatio Clark, and was heard on a demurrer to the bill. The allegations in the bill are stated in the opinion of the Court.</p> <p>contending that the bill was insufficient, as it disclosed no ground whereon to ask any remedy of this Court, sitting as a court of equity. Every thing alleged in the bill might be true, and yet the plaintiff might have a full and adequate remedy at law. It is not alleged, that there was any levy upon the real estate said to have been fraudulently conveyed, and no return has been made upon the execution, that property of the debtor to satisfy it could not be found, nor any allegation which negatives a perfect remedy at law. Merely saying that the party has no remedy at law, is matter of form only, and is wholly insufficient to give the Court jurisdiction, without alleging such facts as show that the Court has jurisdiction as a court of equity. In their'argument they cited Rev. Stat. c. 96; Russ v. Wilson, 22 Maine R. 210; Herrick v. Richardson, 11 Mass. R. 234; Coombs v. Warren, 17 Maine R. 404.</p> <p>The points made by him are given in the opinion of the Court. He cited Story’s Eq. PI. 24 ; Mills v. Gore, 20 Pick. 28 ; Clapp v. Shepherd, 23 Pick. 228 ; Reed v. Cross, 14 Maine R. 259; Story’s Eq. PI. 350, 365, 403, 416 ; Pillsbury v. Pillsbury, 17 Maine R. 107 ; Hanly v. Sprague, 20 Maine R. 431; 2 Atk. 235 ; Trecothick v. Austin, 4 Mason. 41 ; 3 Paige, 467; 7 Johns. Ch. R. 144; 1 Sim. 37; 2 Sim. 285; Gardiner Bank v. Hodgdon, 14 Maine R. 453 ; Traip v. Gould, 15 Maine R. 282; Howe v. Ward, 4 Greenl. 195; Clapp v. Leatherbee, 18 Pick. 131; Parkman v. Welch, 19 Pick. 231; 8 Wheat. 229 ; 8 Conn. R, 190; 2 Pick. 411; 1 Story’s Eq. 352; Com. Dig. Covin, B 2.</p>

Trespass quare clausum. The writ was dated June 12, 1841. The defendant admitted the doing of the acts alleged to be trespasses, and justified, because the right of entry and title was in him. The plaintiff, in support of his action, read in evidence a deed of the premises from David Gullifer to James Woodman and himself, dated Dec. 22, 1831, and a conveyance by James Woodman to him.

Bill in equity. The substance of the bill, answer and proof is stated at the commencement of the opinion of the Court. Webster, pro se, said that the principle in equity was well established, that if one man purchase land with the money of . another, he holds the land in trust for that other. 17 Maine R. 107; 14 Maine R. 281; 2 Fairf. 9; 16 Maine R. 268; 2 Story’s Eq. 443 ; 1 Wilson, 2].

This case came before the Court on the trial of a review of action, brought by John Ware against the plaintiffs in review, Abner Coburn, Philander Coburn, Moses Jewett and Amos F. Parlin, on a joint note given by them to J. M. Pollard, and indorsed to Ware after the note fell due. The note be- came payable on June 24, 1837, and this indorsement was made thereon at the time it bears date. “Feb. 15, 1837.

<p>This was petition by Abel Hoxie and Dennis Blackwell for a mandamus to the County Commissioners of Somerset. The facts in the case are recited at the commencement of the opinion of the Court.</p> <p>The case was argued by</p> <p>and submitted without argument, by</p>

Assumpsit upon a note of which the following is a copy. “Monson, Oct. II, 1841.

<p>A bill in equity must state a cause within the appropriate jurisdiction of this Court as a court of equity. If it fails in this respect, the error is fatal in every stage of the cause, and can never be cured by any waiver, or course of proceedings, by the parties. The Court itself cannot act, except upon its own intrinsic authority, in matters of jurisdiction.</p> <p>Under the provisions of the Revised Statutes, c. 96, and c. 125, this Court, as a court of equity, has no power to act on the subject of “ foreclosure of mortgaged estates.” ;\</p> <p>The mortgagee is not accountable to the mortgagor, nor to any one claiming under him, for rents and profits of the estate anterior to his entering into the possession thereof; nor is the mortgagor accountable to the mortgagee for the same until the latter has taken possession of the estate mortgaged.</p> <p>At law, when a married woman who is entitled to a distributive share in the estate of a deceased relative, receives the amount herself, separate from her husband, and with his assent, it immediately becomes the estate of the husband, as much as any other funds he may hold.</p> <p>And the rule is the same in equity, if the husband is insolvent at the time, and the fund is wanted for the payment of his debts.</p> <p>Where the husband purchased an estate encumbered by a mortgage, and af-terwards mortgaged the same to another; and subsequently the wife, with the consent of the husband, received money belonging to her as her distributive share of an estate to which she was an heir, and delivered the same herself to a friend, to be by him appropriated to procure the assignment of the first mortgage to himself, to bo holdcn in trust for her benefit, and the money was so appropriated and the mortgage assigned; it was held, in a bill in equity brought by the last mortgagee, whose debt remained unpaid, against the husband and wife and assignee, that the first mortgage was thereby discharged.</p>

<p>The exceptions state, that this was an indictment, tried in the District Court, “ for an assaultthat Blake called Michael Carey, by whom he proved, that the assault was made by French, the complainant, and that the defendant acted in self-defence.</p> <p>The county attorney, to impeach Carey, without inquiring of the witness, if he had so said, called Charles Blake, who testified, that he asked Carey, if he had sworn falsely in a case in which he had been a witness for said defendant; and that the witness said “ he had, and would again, if Blake wanted him toand by another witness, that he said, “ that he would tell just what Caleb told him to.” Objection was seasonably made to the admission of this testimony, but it was admitted by AlleN, District Judge, presiding at the trial.</p> <p>On the return of a verdict of guilty, the accused filed exceptions.</p> <p>1. The law recognizes but three modes of impeaching a witness. First. By disproving the facts stated by him, by the testimony of other witnesses. Second. By general evidence affecting his credit for veracity. Third. By proof that he has made statements out of court contrary to what ho testified on the trial. 1 Greenl. Ev. 512, 513, 514; 1 Phil. Ev. 229, 230, 231; 1 Stark. Ev. 145. The evidence objected to comes within none of the above modes; and those are the only modes known to the law.</p> <p>2. The evidence of Charles Blake was inadmissible on another ground. If offered as proof of former perjury, that can only be done by the record of conviction.</p> <p>3. It is raising a new issue; and if the government can prove one side, the accused may the other, and the guilt or innocence of a witness may thus be tried collaterally.</p> <p>4. The evidence thus admitted is hearsay, and so inadmissible.</p> <p>5. If the defendant’s witness had been asked that question, the government would have been bound by the answer. It jis a mere collateral matter. If a witness is allowed to be impeached on collateral matter, issues may be raised indefinitely.</p> <p>6. The evidence should have been excluded, because it was not relevant to the issue ; and because it did not conflict with any statement by him made; and would open a wide door without any definite limitation. Halley v. Webster, 21 Maine R. 464.</p> <p>If the evidence received was proper evidence to impeach or discredit the witness with the jury, it was not necessary to inquire of the witness, before offering the testimony, whether he had made the statement proved by the impeaching witness. The English rule has never been introduced into our practice. Ware v. Ware, 8 Greenl. 42; Tucker v. Welch, 17 Mass. R. 160.</p> <p>The three modes of impeaching a witness, cited from Green-leaf’s Evidence, are not the only modes. A very common method of impeaching a witness is, to prove that he was not present, when the facts transpired about which he was testifying ; or to prove a witness in a state of intoxication at the time. Swift’s Ev. 141; 1 Stark. Ev. 157; 1 Greenl. Ev. 516.</p> <p>The testimony introduced was the most effectual way of discrediting the witness.</p> <p>There is no greater ground for objection to this, as hearsay evidence, than can be made to ail testimony introduced to impeach any witness. This was relevant to the issue, having a direct bearing upon the credibility of the witness.</p> <p>The government would not have been bound by the answer of the witness, if it had been asked. It would not have been irrelevant, because it went directly to the character of the witness. 1 Greenl. Ev. 506. It was therefore clearly admissible.</p>

<p>Where a corporation brings a bill in equity, and alleges therein that certain acts were done by committees thereof, whereby a resulting trust in certain land, conveyed to a third party, was raised in favor of the corporation, it cannot prove the authority of the committees to act therefor by parol evidence ; their power to act can be shown only by its records.</p> <p>It is sufficiently early to make the objection, that no legal proof of the authority of the committees to act in behalf of the corporation had been shown, at the hearing.</p>

<p>To make out a -valid title to land sold to obtain payment of taxes assessed thereon, tile purchaser under the collector’s sale must show, that the provisions of law preparatory to and authorizing such sales, have been punctiliously complied with.</p> <p>In determining the validity of a title under a collector’s sale of land, on account of the non-payment of taxes thereon, the case must be governed by the law as it stood at the time of the assessment and sale.</p> <p>Collectors have no power to sell lands, by reason of the non-payment of taxes thereon, except in pursuance of the provisions contained in the statutes; and can soli only in the precise eases in which it has been so authorized.</p> <p>Property taxed to an individual, must be understood to be taxed to him by name, and not as to a person unknown.</p> <p>A collector of taxes, before he can proceed to sell real estate taxed to persons unknown, must ascertain whether the owner lives out, of the State or not; if he lives within the State, then the collector must, before proceeding to sell his land for the payment of taxes, give him two months previous notice in writing of his liability; or the sale will be unauthorized and void.</p>

Assumpsit upon an instrument in the terms following: — “Bangor, Oct. 11, 1836.

At the trial of this action, which was trespass quare clau-sum, before Whitman C. J. the plaintiff contended, that the action was maintainable; that the defendant had no right to hoist the upper dam gate at any time, or to enter the plaintiff’s land for that purpose; that if he had that right at any time, the plaintiff had the right to forbid such entry and hoisting, when there were reasonable grounds to believe, the water would 'be needed for the grist mill, &c. and that,…

<p>This was a bill in equity in favor of Rufus Dwinal against John B. Smith and Merritt D. Gilman, wherein the plaintiff alleged, setting forth the facts particularly, that on Oct. 6, 1837, Gilman was indebted to him in the sum of $683,50; that Gilman on that day conveyed to him certain real estate in payment thereof; that at this time, the plaintiff examined the records and could there find no notice of any conveyance, attachment, or incumbrance thereon, and that Gilman assured him, that there was none; that afterwards he discovered, that Smith had, on the twenty-second day of August preceding, privately attached the same premises, recovered judgment on his demand by default, and levied his execution upon the same; that the demand sued by said Smith was fictitious, and wholly without consideration, and made and received for the purpose of defrauding the plaintiff; that the said Smith and Gilman had combined together and with others, to convey away the property, and place it where it should be held for the benefit of Gilman ; and that he has demanded possession of the premises of Smith, who sets up his pretended title, thus founded in fraud, and refuses to give up the possession thereof. The bill prays,' that the defendants may be held to make disclosure and discovery of the facts, and that they may answer interrogatories, particularly propounded ; that the levy may be decreed to be inoperative; and said Smith compelled to release the same to the plaintiff; with a prayer for general relief.</p> <p>The defendants jointly demurred to the bill.</p> <p>Ingersoll argued in support of the demurrer, contending, that the Court have no jurisdiction of the case, because there was a complete and adequate remedy at law. The bill goes on the ground that the debt was fictitious, and the attachment and levy therefore void. The plaintiff should, in such case, have brought his writ of entry, instead of his bill in equity. Holland v. Cruft, 20 Pick. 321 ; Adams v. Page, 7 Pick. 542; Fairfield v. Baldwin, 12 Pick. 388; Spear v. Hubbard, 4 Pick. 143.</p> <p>The plaintiff is not entitled to any discovery or answer from the defendants, on the ground, that by so doing they might criminate themselves. The bill charges a criminal of-fence upon the defendants; and the law does not permit a course which might force thorn to furnish evidence to be used against them in a criminal trial. It is an indictable offence by statute, and at common law. Rev. Stat. c. 161, § 2; c. 148, § 49; 16 Johns. R. 592; 1 Woodeson, 207 ; Story’s Eq. PI. 438; Wigram’s Points of Discov. 82 and 259; 1 Sumn. 504.</p> <p>contended, that the Court had jurisdiction of the case, as one of fraud. There was no adequate remedy at law. Nor could relief be obtained without discovery of the truth in some way to render it available. And for this purpose he is entitled to a discovery of the truth from the defendants. Briggs v. French, 1 Sumn. 504; 1 Story’s Eq. PI. 82 and 578; Evans v. Chism, 18 Maine R. 220; Gordon v. Lowell, 21 Maine R. 251.</p> <p>The defendants cannot refuse to answer, on the ground, that the bill charges a crime; for it appears from the facts stated in the bill, that all prosecutions under it are barred by the statute of limitations. Rev. Stat. c. 167, <§> 15; Story’s Eq. PI. <§> 598; Hare on Discov. 147.</p> <p>The demurrer should be overruled, because no causes of demurrer are assigned. Story’s Eq. PI. ■§> 452, 453, 454.</p>

Bill, in equity against John S. Ayer and John Fiske; and heard on bill, answer and proof. Brown and Gardner were the owners of a lot of land in Bangor, and on Nov. 19, 1830, conveyed the same to P. & P. H. Coombs, who at the same time gave back a mortgage thereof to secure the payment of notes for the consideration. Both deeds were recorded on the day of their date.

This was a writ of error brought by Nickerson to reverse a judgment against him of the police justice of the city of Bangor, in a suit commenced by Howard, as ensign and commanding officer of a company in which Nickerson was liable to do militia duty, to recover a fine for non-appearance at a May training. At the time of the training there was a clerk of the company in office, who had ceased to be such, without having commenced any process, before the suit was instituted.

Assumpsit upon an instrument of which a copy follows: “ I hereby, value received, promise and engage to pay William Bradbury two hundred dollars and interest in one year from this date, provided Elisha H. Allen shall not redeem lot No. 207, and house thereon, the equity of redeeming of which has this day been sold to said Bradbury ; said redemption to be in one year from date. Feb. 1.9, 1838.

<p>Every contract must have an interpretation governed in some measure by the subject matter to which it relates; and at the same time, with reference to any known usage connected therewith.</p> <p>Where the plaintiff entered into a written contract with the defendants to cut and haul sound timber, suitable for boards, from their land to the river, to be by them run from thence and sawed at their mills, at an agreed price per thousand feet, “the timber to be scaled,” before put into the river,by one of certain persons named, to be selected by them; such survey, no fraud appearing, is conclusive between the parties to ascertain the amount to be paid for cutting and hauling; although it might appear by a re-survey at the mills, that the first surveyor made an over estimate, caused by not making a sufficient allowance for defective timber.</p>

<p>Parol evidence of statements made by the indorser at the time of a blank indorsement of a promissory note, is not to be received to contradict or vary the legal contract implied by such indorsement; but such evidence is admissible for the purpose of showing a waiver of the necessity of making a demand or giving notice.</p> <p>If a note is indorsed when overdue, a demand is sufficient, if made within a reasonable time after the indorsement.</p>

At the trial, before Tenney J. after the evidence was before the jury, on both sides, the substance of which is given in the opinion of this Court, the presiding Judge intimated an opinion, that the action could not be maintained; and thereupon the plaintiff consented, that a nonsuit might be entered, to be taken off, and the action to stand for trial, if in the opinion of the Court it could be maintained; and a nonsuit, on those terms, was then ordered. citing Stat. 1821,…

Tenney J. presiding at the trial, among other instructions to the jury, gave the following: — If on the 27th or 28th of July, 1842, Bragg consented to deliver the property to Goddard, and Bragg agreed, that Couil-lard should sort the shingles, and he did sort them, and they were afterwards delivered to Goddard before the delivery by Bragg to Frost, or the taking possession by Walker, Goddard had a right to the same, and there was no trespass.

<p>Trover for certain goods. The plaintiffs, to show title in themselves offered a mortgage from Robert Kellen to them, without date, recorded Feb’y 1, 1842, of “all and singular the goods wares and merchandize, stock, harness work and other articles of every kind and description now in the shop occupied by me in said Bangor.” The plaintiffs then introduced the subscribing witness to the mortgage, and proposed to prove by him, that the mortgage was executed and delivered on Feb. 1, 1842. To this the defendants objected, but the testimony was admitted by Tenney J. presiding at the trial.</p> <p>It appeared from the evidence, that the property was left in the possession of Kellen, the mortgagor, with authority to sell as agent for the plaintiffs, for cash and in small parcels. The sale of part of these goods by Kellen to Hunt, under which he claimed, was not within the authority, and the plaintiffs refused to ratify it. The exceptions state, that it was contended on the part of McMullen, the other defendant, that he, as servant of Hunt, ignorant alike of the existence of the mortgage and of the terms of the contract of sale by Kellen to Hunt, and of any circumstances tending to show, that the sale was invalid, was sent by Hunt to bear the articles from Kellen’s shop to Hunt’s; that as Hunt’s servant he received them from Kellen, and deposited them in Hunt’s shop, and had no further con-nexion with them; and that therefore he was not liable to the plaintiffs in this action. The exceptions, also, state, that there was evidence in the case tending to sustain McMullen’s position.</p> <p>The presiding Judge instructed the jury, that the mortgage vested in the plaintiffs title to all .the goods in Kellen’s shop on the first day of February ; and that if Hunt was liable in this action, and McMullen as his servant aided him in removing the goods, then McMullen was liable for all the goods he so removed.</p> <p>The verdict was for the plaintiffs, and the defendants filed exceptions.</p> <p>and said that the statute, (c. 125, <§> 32,) requires that all mortgages shall be in writing, and shall be recorded, unless actual possession is taken; or they will be invalid against creditors or purchasers. The record of the mortgage must show what property is conveyed. A reference to a schedule of the property is not sufficient. Sawyer v. Pennell, 19 Maine R. 167. If the subscribing witness had been referred to, that would have been much less satisfactory than a schedule. The record merely shows, that certain property which was in a shop at some indefinite time was attempted to be mortgaged. It is too uncertain to pass the property.</p> <p>The paper has no meaning in itself, and on its face is void for uncertainty. 4 Mass. R. 205. If it be said there is an ambiguity, it is a latent one, and cannot be made certain by parol evidence. If the evidence is admissible, it is the witness, and not the writing which conveys the property. The testimony was improperly received. Stark. Ev. Part 4, pages 170, 172,173.</p> <p>The action cannot be supported against McMullen. The articles were left by the plaintiffs in the possession of Kellen, and he delivered them to McMullen, to be carried to Hunt’s store. He was a mere carrier from one shop to another. This is no conversion by him.</p> <p>contended that where there is no date, it is to be presumed that the instrument was executed and delivered on the day on which it was recorded.</p> <p>The parol evidence was properly admitted. It is always competent to prove the date of any instrument by parol.</p> <p>Hunt was a wrongdoer, and the other defendant aided him in the commission of the wrongful act and is therefore equally liable.</p>

Debt on a poor debtor’s bond, dated April 25, 1843. The record of the justices shows, that they first met and organized on Oct. 24, 1843 ; and that they “ then adjourned to the 25th day of October, 1843”; that they met on that day, and “ again adjourned to November 18, 1843”; and having met on that day, they “ further adjourned to the 29th day of November, 1843”: and on this latter day they administered the poor debtor’s oath to the debtor.

This case came before the Court upon the following statement : — Scire facias to revive a judgment of this Court, and to have an alias execution issued. The plaintiff introduced a judgment of the Court, rendered October Term, A. D. 1839, in this county, for $4301,56, debt, and $17,56, costs. An execution issued Nov. 21, 1839.

Writ of entry. The demandants and the tenant were tenants in common of the demanded premises. The pleadings are stated in the opinion of the Court.

<p>A reference in a bill of exceptions to papers introduced at the trial, does not make them a part of the exceptions; and they cannot properly be taken into consideration by this Court.</p> <p>That a deposition was taken on the day next preceding that on which the Court, at which it was to be used, was to commence its session, without regard to the distance of the place of caption, when no sinister purpose wa's in view, is not a sufficient cause for excluding the deposition.</p>

<p>These were writs of entry.</p> <p>The demandant in these actions introduced to prove his title, at the trial, before Whitman C. J. the same deeds and bond, which were in the report of the case, Treat v. Strickland at. 23 Maine R. 234; and also the will of Waldo Pierce, and a deed of quitclaim from the heirs of said Pierce to himself, which may be referred to.</p> <p>The tenants introduced the same deeds and papers which they introduced in said case, and the same offers were made, and same points taken, and the same rulings of the Court, as in the above case, and as reported by the presiding Judge, reference to said report being had.</p> <p>In the present cases, which were instituted after the Revised Statutes went into operation, the demandant claimed to recover rent or damages against the tenants for the rents and profits of the premises according to the provision in the statute. This claim was resisted by the tenants. In order to settle the amount and to present the question of mesne profits to the whole Court, it was agreed to refer certain questions to Samuel Wells, Esq. by an agreement signed by the parties.</p> <p>The demandant reserves the right to move to amend, by declaring specially for said mesne profits, if the Court should be of opinion that such an amendment is necessary to entitle demandant to said profits.</p> <p>The demandant proved by Samuel Smith, that on Nov. 8, 1836, the said E. & S. Smith gave to said Treat & Pierce an agreement of which the following is a copy: —</p> <p>“Bangor, Nov. 8, 1836.</p> <p>“We hereby agree with Waldo Pierce and Robert Treat, that we will not call for or demand any paper or bonds signed by them, now in the hands of a third person, until we pay two notes of 01250 each, dated March 12, 1835, and payable to them. “ E. & S. Smith.</p> <p>“ Witness, D. M. Howard.”</p> <p>The erections on the premises were made by said Smiths, in 1833, 1834 and 1835; and this fact may be considered as proved in deciding upon the questions in reference to rents and mesne profits. The buildings which were upon the premises in 1832, were removed by said Smiths, when the present ones were erected.</p> <p>The demandant offered to prove that the deeds of quitclaim from Samuel Smith to John Fiske, and from same to Strick-lands and Leonard were without consideration, and that defendants never in fact purchased or paid for the land or buildings claimed by plaintiff. This evidence was not received by the Court.</p> <p>If upon the whole case, the demandant was entitled to judgment in his favor, the tenants were to be defaulted, and judgment thereon in each case; and such judgment as to damages for mesne profits and rents as the Court, upon the case and the report of the commissioner, may determine he is entitled to in each case; otherwise the cases may stand for trial.</p> <p>The following is the agreement to refer, to which, reference was made in the report of the trial, and in the report of the referee.</p> <p>“The parties agree, that Samuel Wells, Esq. of Hallowell, shall ascertain and report the net rents and profits of an undivided half of the wharf or gore lot declared for, and one undivided fourth part of the 23 feet strip, so called, declared for, on the following principles.</p> <p>“ 1st. As the same would have been if the land had remained with such erections as were thereon at the time of conveyance from Smith to Treat & Pierce, in 1832.</p> <p>“ 2d. What the ground rent only of said demanded premises, without any buildings, would be or would have been.</p> <p>“ 3d. The rents and profits of said demanded lots and premises with the buildings and improvements thereon, as the same were, when said tenants respectively entered and have been since. And said commissioner is to ascertain and report, what part and portion of said rents and profits, he allows for the portion of land on said 23 feet strip, which lies below the line of highwater mark on said strip, and within lines at right angles on the flats from the base line of said high-water mark.</p> <p>“ Also report said rents and profits on the supposition that the lines of said twenty-three feet strip are continued on the flats in the same direction as the side lines of the upland.</p> <p>“ The calculation in all cases to be made, from the time the tenants entered, up to next term of this Court, said report to to be taken by the Court, as facts ascertained and settled, so far as the amount of rent is concerned ; and judgment to be made thereon according to the opinion of the Court.</p> <p>“ The said commissioner not to report any specific line of highwater or to determine the same so as to affect the rights or title of the parties on that point, except as the questions of rents and profits are concerned.</p> <p>“ And the parties further agree, that if the Court shall consider the plaintiff by his deeds and the will of Waldo Pierce, and other deeds, papers and evidence in the case, all the evidence on both sides being considered, entitled to recover possession of said 23 feet strip, with side lines extended on the flats in same direction as the side lines of the upland, and should be of opinion that the plaintiff can legally be permitted to amend his declaration, and ought to have license so to do, so, as specifically to embrace the flats within said side lines continued as aforesaid, then said amendment is to be made and judgment on default and for rents and profits of said premises as the opinion of the Court may be.</p> <p>“If such amendment is not allowed or asked for, then the Court may render such judgment upon default and for such amount for rents and profits as they shall decide the plaintiff to be entitled to.</p> <p>“ The commissioner to report what proportion each defendant is liable for, of the rents and profits.”</p> <p>This agreement was signed by the parties.</p> <p>“ Report of Samuel Wells, referee in the actions George A. Pierce against Artemas Leonard, the same against the Central Bank, and the same against Hastings Strickland & al. said actions now pending in the Supreme Judicial Court in the county of Penobscot.</p> <p>“ The referee having duly notified the several parties, met them at Bangor in said county on the twenty-second day of May, 1844, and having heard their several pleas, proofs and allegations, and maturely considered the same, does award and determine, and this is his final award in the premises.</p> <p>“ That he does not find, that said Leonard has received any portion of the rents and profits demanded by said Pierce in said action, and it was agreed by the parties, that the referee should thus report in relation to the action against said Leonard.</p> <p>“ And said referee further reports, that upon the first “ principle,” upon which he is to ascertain the “ net rents and profits,” as provided in the agreement of the parties, that said Pierce shall recover against the Central Bank for said rents and profits, estimated from the first day of January, 1839, to the first day of July, 1844, the sum of eight hundred and twenty-four dollars and seventy-one cents, and that the said Pierce shall recover against said Strickland & al. the further sum of five hundred and forty-six dollars and fifteen cents.</p> <p>“ And the said referee does further award and determine that upon the second “ principle” mentioned in said agreement, the said Pierce recover against the Central Bank the sum of three hundred and ninety-three dollars; and that he recover against said Strickland & al. the further sum of two hundred and sixty dollars.</p> <p>“ It was conceded by the parties, that the city ordinance, passed August 29th, 1842, prohibited the erection of wooden buildings after that period.</p> <p>“ And the referee does further award and determine, that upon the third “principle” mentioned in said agreement, the said Pierce recover against the Central Bank the sum of fourteen hundred and fifty-one dollars and thirty cents, and that he recover against said Strickland & al. the further sum of nine hundred and seventy-eight dollars and ninety cents.</p> <p>“ In the foregoing estimate, the calculation is based upon the assumption, that the lines of the “ twenty-three feet strip” are continued on the flats in the same direction as the side lines of the upland; the other mode of calculation by deflecting lines having been waived by the parties. But if the Court shall be of opinion, that said Pierce is not entitled to recover for rents and profits on said strip below the line of high water mark, included in said estimate, then the referee does award and determine, that there should be deducted from the sum, awarded as aforesaid to said Pierce against the Central Bank, one hundred and thirteen dollars and six cents; and that there should be deducted from the sum, awarded as aforesaid to said Pierce against said Strickland & ah, one hundred dollars and twenty-nine cents.</p> <p>“ The preceding calculations are all based upon the time admitted by the parties to be correct, it being from the first day of January, 1839, to the first day of July, 1844.</p> <p>“June 15th, 1844. “Samuel Wells, Referee.”</p> <p>The case was argued by</p> <p>To show, that the tenant in possession may set off against the claim for rent, the Value of the ameliorations of the estate, made thereon by the tenant, McGaw cited 8 Wheat. 75, 80; 5 Coke, 3 ; Wash. Cir. Rep. 165; 2 Johns. Cas. 438 ; Stearns on Real Actions, 374.</p> <p>cited 12 Mass. R. 314; 9 Greenl. 62; Stearns on Real Actions, 404; 2 Pick. 505.</p>

Assumpsit. The plaintiff read in evidence a contract, of which a copy follows: — “ I hereby agree with Charles G. Richardson, for value received, to pay and take up of the land agent of Maine, four notes of hand signed by Ivory Jefferds, dated Dec. 10, 1834, for forty-six ^ dollars each, amounting in all at compound interest, on the twenty-fifth of September next, to the sum of two hundred and forty-four dollars, and I hereby agree to take up said notes on or before said…

Exceptions from the Eastern District Court, Allen J. presiding. Trespass against Small, as former sheriff of the county, for taking a quantity of clapboards, by Haines, his deputy, alleged to be the property of the plaintiff, in March, 1837. The defendant justified the taking by virtue of a writ in favor of William Smith against Ezekiel Hackett, averring that the clapboards were the property of Hackett, and as such were attached.

<p>If the assignee of a mortgage enters into the possession of the mortgaged lands for condition broken and to foreclose the mortgage, the entry must be considered as made by reason of the non-payment of the whole amount secured by the mortgage, which had then become payable, although but one of the notes was the property of the assignee, and the other remained the property of the mortgagee.</p> <p>If a mortgage be made to secure the payment of two notes, falling due at different dates, and the mortgagee transfers the note last payable and assigns the mortgage, retaining the other note himself; and the assignee, after his note has become payable, enters into the mortgaged premises for condition broken and to foreclose the mortgage, and a foreclosure takes place ; both notes are discharged, if the mortgaged premises were, at the time, of sufficient value for the payment thereof.</p>

Replevin “ of a quantity of meadow hay lying on the heath in Alexander.” Non cepit was pleaded. At the trial before Whitman C. J. the plaintiff introduced all his evidence, which is given in the report of the case, and thereupon a non-suit was entered by consent; to be taken off, if the evidence was sufficient to maintain the issue on the part of the plaintiff; otherwise it was to stand. What was proved by the evidence is stated in the opinion of the Court.

Writ oe entry. The description of the land conveyed by the proprietors of township numbered three to John Lee, was in these words: — “ The several lots of land lying within the township aforesaid, which are on the proprietors’ plan numbered as'follows, in that part of said township called Castihe, viz: thirty-nine, forty, forty-one, forty-two and forty-three, containing about three hundred and five acres, bounded, southwesterly on land possessed by the heirs of John Bakeman,…

This case came before the Court on exceptions to the ruling of the Judge before whom the trial was had ; and upon a motion for a new trial on account of certain alleged misconduct of some of the jurors.

This was an action, brought by the plaintiff as division advocate of the division of miltia, to recover a fine incurred by a neglect of duty by the defendant as an officer. Copies were furnished, merely, of the demurrer and joinder ; and what the declaration was, which was demurred to, does not appear.

Exceptions from the Middle District Court, Redington J. presiding. Southard Phillips made a complaint against McAllister for an assault and battery, in legal form. This complaint was sworn to before a justice of the peace, who made out a warrant for the arrest of McAllister upon the same paper, commencing immediately under the complaint.

This was an action of assumpsit for the support of a pauper, originally commenced by the inhabitants of New Gloucester against the inhabitants of Danville, before a justice of the peace, and carried by appeal to the District Court. There was a trial of the action in that Court, and judgment was rendered there, on the verdict for the defendants.

On November 21, 1844, Andrew G. Winslow made his last will and testament, wherein he directed, that the principal portion of his estate should be divided into three equal parts, and that his brother, John Winslow, who now contests the validity of,the will, should have one part, and that his friends, Jeremiah Kimball and Edward Wheeler, Jr., who were made executors, should also each have a third.

<p>At the trial, before Whitman C. J. a verdict was returned in favor of the plaintiff, and the counsel for the defendants filed exceptions to the rulings and instructions of the presiding Judge in several particulars. As a new trial was granted with reference to but one, it becomes unnecessary to notice the others. The facts are stated in the opinion of the Court, at its commencement. The admission of the administrator to testify in the case, is thus stated in the exceptions.</p> <p>“ On motion of the counsel for the plaintiff, William H. Morse, the plaintiff, was then admitted by the Court as a witness in the cause, the counsel for the defendants objecting to his admission; and said Morse was sworn in chief to testify in the cause. And being so admitted, the said Morse was examined by the counsel for the plaintiff as a witness in the cause, and on his examination testified that, ” &c. — giving testimony in support of the claim.</p> <p>referred to the statutes on the subject. Stat. 1821, c. 51, <§> 26 ; and Rev. Stat. c. 109, § 7, 8, and 23. The eighth and twenty-third sections contain new provisions, not contained in any prior statute.</p> <p>He then contended, that the Court, in giving a construction to the statute, should look to the intention of the legislature in making the provision, to the design and object of its enactment, rather than to the mere letter.</p> <p>The design evidently was, that the Court, at the request of the counsel for the representatives of the deceased insolvent, might examine the creditor, who brought forward a claim, in order to ascertain whether it should be allowed. It is only when the estate is rendered insolvent, that the examination of the claimant is authorized. It could not have been the intention of the legislature, that when the estate is insolvent, the alleged creditor is to offer himself as a witness to prove his own claim, when, without it, he would have failed. It was intended merely for the benefit of the estate. The letter, as well as the spirit of the statute favors this construction. It is only when “ required” by the Court, or by the commissioners,-that the claimant is to testify.</p> <p>The mode of admission too, was an improper one. He was sworn in chief as a witness generally, when he should have been sworn to make true answers only.</p> <p>contended that the Court decided properly in directing the examination of the administrator in support of the claim. They cited the s.ame sections of Rev. Stat. c. 109, and said, that it was the duty of the Court, so to construe a statute, that it may have a reasonable effect agreeably to the intention of the legislature. 3 Mass. R. 540; 12 Mass. R. 384 ; 14 Mass. R. 93. The letter of the statute may be enlarged or restrained, according to the true intent of the makers of the law.</p> <p>The object of the law, on this subject, was to allow the commissioners, or the Court on appeal, to get at the truth in relation to the claim. If the Court orders the examination, it is immaterial who makes the motion, or who puts the questions. It is a mere matter of discretion, whether it shall be permitted or not, and the presiding Judge is to decide it.</p> <p>The administrator stands in the place of the creditor, and may be regarded as the creditor.</p>

This was an indictment against Edward Newbegin and Samuel L. Barnes for breaking and entering the store of Jeremiah Dow, in Portland, in the night time, and stealing twenty yards of satinett, valued at ten dollars, and was tried at the District Court, Cumberland county, March Term, 1846. Barnes did not appear, and Newbegin was tried alone.

Writ of ejítry. The demandant claimed the land under the levy of an execution in his favor against Abraham Osgood, Son’r, upon the premises, as the property of Osgood, made on February 13, 1844, the attachment upon the writ having been made in March, 1841. The tenant claimed under the same Abraham Osgood, by virtue of a deed thereof from him, dated November 5, 1839, and recorded upon the same day.

Assumpsit upon a policy of insurance entered into by the defendants on June 26,1844, by which the plaintiff was caused to be assured the sum of five thousand dollars on freight on board the barque Isadore, at and from Havana to St. Peters-burg. The general issue was pleaded, with a brief statement wherein the defendants alleged: — First. That at the inception of said voyage, the said barque was unsound, leaky, badly found, and unseaworthy. Second.

<p>If a testator devises Iiis estate to his wife, <£ to hold the same to her and her heirs forever. On condition, however, that my said wife slta.il support and maintain in a comfortable and suitable manner my much honored and now aged and infirm mother, should my mother survive me,” the devise is upon a condilion subsequent, and the estate is subject to forfeiture for neglect of performance.</p> <p>The devisee became entitled to enter upon and enjoy the estate until forfeited: and no one can take advantage of a breach of such condition, and make an entry to create a forfeiture of the estate, but an heir at law of the devisor.</p> <p>The Rev. Slat. c. 145, § 6, dispenses with the necessity of an entry in those cases in which a formal entry was required by the common law to restore the seizin to one who had been disseized, or otherwise deprived of it; but does not apply to cases whore an entry was required, not as matter of form, hut for the purpose of causing a change of title, or a forfeiture of the estate, in certain cases, courts of equity give relief against forfeiture of title, depending upon the performance of conditions subsequent, when compensation can be made. But whether this Court have that authority under our statutes, may be doubtful.</p>

<p>The facts in this case, so far as they are pertinent to the question on which the decision is founded, sufficiently appear in the opinion of the Court.</p> <p>It was agreed by the parties that the case should be argued in writing.</p> <p>As the arguments approach to nearly eight hundred pages, the space required for them is, obviously, too great for their admission into a volume of Reports.</p> <p>were said at the close of the opening argument for the plaintiff to have been counsel for him; but both the opening argument and the reply appear to have been made by the plaintiff himself, who is a counselor at law.</p> <p>• The counsel for the defendants, in support of their point, that the Court, as a court of equity, had no jurisdiction, cited Russell v. Clark’s Ex’ors, 7 Crunch, 69; Todd v. Gee, J 7 Yesey, 277; Jenkins v. Parkinson, 2 Mylne & Keene, 559 ; Tenham v. May, 13 Price, 749; 1 Sug. Yend. & Pur. (6th Am. Ed.) 286; 2 Story’s Eq. § 794, 796, 799; Russ v. Wilson, 9 Shepl. 207 ; and Person v. Sanger, in the U. S. Circuit Court for the Maine District, not yet reported.</p>

This was an indictment against Williams for voting twice at one balloting for the choice of a selectman, at a town meeting holden at Falmouth, on April 14, 1845, against the provisions of Rev. Stat. c. 6, § 63..