Volume 26 — Maine Reports

The defendants were summoned to answer unto the plaintiff “ in a plea of trespass on the case,” for that, the plaintiff left a note for collection with the defendants, and that they “ promised and undertook to collect the same for the use of the plaintiff,” and that they “ carelessly and negligently omitted and refused” to make a demand upon the maker and give notice to the indorser of the note, “ by reason of which carelessness and negligence of the defendants the said…

<p>This was a petition by the plaintiffs for a rehearing of the case in equity, between the same parties, reported in 23 Maine Reports, 388. The case, a rehearing of which is now sought, was argued at the April Term of this Court in Cumberland, 1844, and continued nisi for advisement. The opinion of the Court was delivered, and a final decree passed, at the following November Term, dismissing the bill, for reasons given in the opinion found in the reported case.</p> <p>At the April Term, 1845, the plaintiffs presented their petition for another hearing, and after reciting the substance of the original bill and of the evidence, gave several reasons why the prayer of the petition should be granted, among which are these: —</p> <p>“ Because at the argument of said cause it was believed by said complainants, that the proofs taken in said cause were sufficient to satisfy this honorable Court of the plaintiffs’ claim to the relief prayed for in their said bill, without resorting to the testimony of said Mitchell, one of the defendants; and that such belief was entertained until the delivery of the opinion of the Court, and that your petitioners were surprised at the opinion aforesaid,” inasmuch as certain testimony, set forth, was alleged to have been in the case.</p> <p>Because in connexion with that testimony, “ said petitioners verily believe, that if said Mitchell was put upon his oath to testify, he would on his oath state the facts aforesaid, and would by his testimony fully substantiate all the material allegations in said bill, and that therefore under the extraordinary circumstances of the case, they are advised, that it is reasonable and proper, that a further hearing should be had for the purpose, that the deficiency in the plaintiff’s testimony should be supplied by taking the testimony aforesaid of said Mitchell, one of the defendants in said bill.”</p> <p>Because the deficiency in the testimony can be supplied by said Mitchell who has already stated the same on oath in his answer, and it was “ not placed before the Court in his deposition, because the plaintiffs were not advised, that it was absolutely necessary to do so, and no fraud or injustice can be effected by supplying said deficiency, no wrong or damage can be done to the defendants, by allowing said cause to be reheard before this honorable court.”</p> <p>“ Because unless said rehearing is granted, the said plaintiffs will greatly suffer by denial of relief in a case of gross fraud and misrepresentations, perpetrated upon them by said Sampson, which relief is granted in all like cases by courts of equity, whose peculiar province it is to protect parties under the circumstances set forth in said bill.”</p> <p>argued in support of the reasons set forth in the petition, and cited 1 Mete. 78; 4 Mete. 109; 2 Smith’s Ch. Pr. 21, 22, 23; 3 P. Wms. 300 ; 18 Yes. 319 ; 9 Ves. 172 ; Hoffman’s Ch. Pr. 498 and 567; 2 Russ. 91; 2 Johns. C. R. 436 ; 1 Vernon, 46; 2 Madd. Ch. R. 483; 10 Ves. 236.; 5 Russ. 287; 1 Johns. C. R. 48; 7 Johns. C. R. 256; 1 Paige, 574 ; 5 Paige, 252 ; 9 Price, 3 87 ; 2 Ves. and JB. 401 ;' 1 Smith’s Ch. Pr. 344; 3 Atk. 402; Ambl. 583; 1 Keen, 1; 6 Paige, 565; 1 Iredell, 93 ; 3 Bland, 126.</p> <p>and cited 2 Hill’s Ch. 357; 1 Irish Eq. R. 472; 6 Johns. C. R. 255; 1 Pet. C. C. R. 364; 13 Ves. 511 ; 5 Simon,' 554; Balter v. Whitney, 1 Story’s R. 218; Story’s Eq. PI. <§> 412, 413.</p>

This case came into this Court from the District Court upon the following report: — _ “ District Court for the Western District. “ CUMBERLAND COUNTY, MARCH TERM, 1846. “Jacob G, Loring & als. versus Jeremiah Proctor. “Assumpsit on a contract of insurance. The writ contains one count, setting out an agreement to insure.

Welch was indicted for the crime of adultery. On his trial the husband of the woman, with whom the criminal act was alleged to have been committed, was called as a witness in behalf of the State. He was objected to as incompetent, but admitted. The jury returned a verdict of guilty, and the counsel for Welch filed exceptions, to the decision of the Judge, admitting the witness.

No copy of the indictment was received by the Reporter. The objections to the indictment, made by the counsel for Keene, appear in the opinion of the Court. cited Rev. Stat. c. 158, and c. 133; 12 Mass. R. 274; 11 English Com. L. Rep. .494; 2 Russ, on Cr. 521, 533, 541; 3 Stark. Ev. 1144. citing 2 Russ, on Cr. 522; Rev. Stat. c. 158, $ 1; 2. Mass. R. 217; 1 Greenl. Ev. 138; 2 Pick. 65; 1 Fairf. 9; 1 Greenl. Ev. § 424; 10 Pick. 135 ; 18 Maine R. 117 ; Chitty’s Cr. 307.

<p>Where an action is brought for an alleged injury to the plaintiff’s property, while in the care and keeping of his servant or agent, arising from the negligence or misconduct of such servant or agent, the servant or agent is not a competent witness for the plaintiff, because a verdict for the master would place the witness in a state of security against any action, which the master might otherwise bring against him.</p> <p>But the liability must be direct and immediate to the party ; for if the witness is liable to a third person, who is liable to the party, such circuity of interest is no legal ground of exclusion.</p> <p>In an action by the plaintiff against a town to recover the value of his goods, alleged to have been lost by reason of a defect in a highway within the town, where the goods at the time of the loss were loaded upon a wagon which, as well as the team, was the. property of another, and under the care of, and driven by a man hired by the owner for that purpose, it was held, that the driver was a competent witness for the plaintiff.</p>

Case against the defendants as indorsers of a writ in favor of Martha Robinson against the present plaintiff and two others, it being an action of trespass. At the April Term of this Court, in the County of Cumberland, 1S45, the defendants in that suit recovered judgment, severally, for costs of suit.

Assumpsit upon a note of which the following is a copy: — “$2292,96. “Boston, May 20, 1835. “ Value received, I promise to pay Amos Davis, or bearer, two thousand two hundred, and ninety-two dollars, at the Suffolk Bank, Boston, in two years, with interest annually. “ Witness, Samuel P. Button. “ Erasmus Holbrook. ” The note was indorsed by Amos Davis.

Exceptions from the Western District Court, Goodenow J. presiding. The whole of the evidence introduced at the trial is given in the exceptions, the substance of which appears in the opinion of the Court. It was all on the part of the plaintiffs. The presiding Judge ruled that the action could not be maintained, and ordered a nonsuit.

<p>The notice required to be given by one town to another under the provisions of the twenty-ninth section of the pauper act (Rev. St. c. 32) is the same as the one required to be given under the thirty-fifth section. Such notice should contain the substance of that which the statute requires, but no particular form is necessary.</p> <p>A notice of the following tenor: — “Selectmens* Office, K., Feb. X, 1843. Gent., L. S. of B. has become chargeable in this town as a pauper. You are hereby notified, that we are supporting her at your expense and .shall continue so to do, until she is removed or otherwise provided for. Per order of the board of overseers of the poor of the town of K., J. XI., Chairman. To the overseers of the poor of B.” — was holden to ho sufficient.</p> <p>A notice once given is not waived by an after letter, reminding the overseers of the poor of the town notified, of the amount of the expense claimed in consequence of its having been incurred for the support of their pauper, referring to the former notice, and requesting payment.</p> <p>If a legal notice under the statute is not seasonably answered, the town notified is not entitled, in defence, to show that the settlement of the alleged pauper was in any other but the plaintiff town.</p> <p>An instruction to the jury — “that in order to constitute a legal settlement of the supposed pauper in K. under the sixth mode of acquiring a settlement, provided in the statute, it must be proved, that she dwelt and had her home there five full years in succession since March 21, 3821, without receiving supplies from any town,” — is not erroneous.</p>

Furlong was indicted for perjury, alleged to have been committed in giving his testimony before a justice of the peace, on the trial of a complaint against Robinson and others, charged with having been guilty of a riot. That the questions of law might be raised without the expense of a jury trial, the whole record of the justice was set out in the indictment.

Exceptions from the Westera District Court, Coodeitow J. presiding. This is scire facias, sued out upon a recognizance, entered into by the defendant to prosecute an appeal taken from the judgment of a justice of the peace in a criminal proceeding. The writ and recognizance were adjudged bad on demurrer; whereupon the defendant moved to be allowed costs, which were not granted by the .Court. To this ruling of the Court the defendant excepted.

<p>Exceptions from the Western District Court, Goodenow J. presiding.</p> <p>Assumpsit by the plaintiff, describing himself as guardian of Richard Eastman, a minor, to recover the wages due for three months labor of Eastman, and the amount which Dresser received for a gun, sold by him, the property of Eastman.</p> <p>The plaintiff proved, that he was the guardian of Eastman ; that Eastman performed the labor for the defendant; that Dresser sold a gun, belonging to Eastman, and received for it twelve dollars; and that he had called upon the defendant for payment, and it was refused.</p> <p>The presiding Judge ruled, that to recover, the plaintiff must prove an express promise to himself; that upon this evidence a promise to the plaintiff, could not be implied; and that the action could not be maintained. A nonsuit was ordered.</p> <p>The counsel for the plaintiff filed exceptions.</p> <p>contended that upon the evidence the action could be maintained.</p> <p>The guardian is entitled to the possession of the personal estate of his ward. Trover could be maintained, most clearly, for the gun. And the defendant having sold the gun, and received payment for it, the plaintiff may waive the tort, and recover in assumpsit.</p> <p>Guardianship is a trust coupled with an interest. The people v. Byron, 3 Johns. Cas. 53. The guardian may lease the land of the ward, avow, or bring trespass in his own name. Byrne v. Van Hoesen, 5 Johns. R. 66. A guardian may submit to arbitration on behalf of his ward. 3 C. R. 253.</p> <p>said that a guardian derives all his rights and powers over the property of his ward in this State from the statute. The statute, c. 110, does not vest the property of the ward in the guardian; it merely gives him the care, custody and possession of the property. The guardian is a mere statute agent, having a power coupled with no interest. 7 Mass. R. 6; 13 Pick. 206.</p> <p>I do not find, that this question has been directly decided, as no such action seems to have been brought before. The precedents of declarations have no form for such action. And there are cases wholly inconsistent with the maintenance of it. 4 Mass. R. 435; 14 Mass. R. 207; 5 Mass. R. 300.</p>

<p>The case was submitted upon the following statement of facts.</p> <p>It is agreed by the parties to this action, that the writ and account sued may be referred to, by either party, but only the account annexed is to be copied and made a part of the case ; that the plaintiff performed the services sued for; that when the two first charges were made, Oris Parker was collector of taxes for said Stoneham ; that when the last charge was made, James McAllaster was collector of taxes for said Stoneham ; that said Parker and McAllaster were both duly chosen and qualified as collectors, and had given bonds in the usual form; and that the said Parker employed the plaintiff to perform the services in the two first items of the account, and the said McAl-laster to perform the services charged in the third item of the account. And the parties hereby agree, that upon the foregoing statement of facts, the Court may render such judgment as they may deem legal and proper.</p> <p>The name of the town was formerly Usher, and was changed by the Legislature to Stoneham.</p> <p>Copy of the account annexed.</p> <p>“ Inhabitants of Stoneham, to George W. Millet, Dr.</p> <p>“Jan. 11, 1841. To publishing in the Oxford Democrat Collector’s notice for the town of Usher for the year 1841, 8,75 “ Oris Parker, Collector.</p> <p>“Nov. 9, 1841. To publishing in the Oxford Democrat Collector’s notice for the town of Usher for the year 1840, 7,50</p> <p>“Jan. 11, 1842. To publishing in the Oxford Democrat, Collector’s notice for the town of Usher for the year 1840, 7,50</p> <p>“ James McAllaster, Collector.” $23,75</p> <p>and contended, that selectmen, overseers of the poor, treasurer and collector of taxes were agents of the town, and that contracts made by them as such, within the scope of their authority, respectively, were binding upon the town. There are many acts which they may do, though no special authority is given by the town for that purpose, which will make the town liable for their acts. Although no special authority is given, yet when town officers are acting for the town in the discharge of their duty, the town is liable to any' person rendering services at their request. Such officers are agents of the town. As the taxes were not paid, it became the duty of the collectors to publish notices previous to the sale of the land in some newspaper. It was for the benefit of the town, that the plaintiff’s services were performed, and at the requests of their agents, the collectors. Both upon principle and authority, the defendants are liable; The counsel cited in support of their argument, 1 Pick. 123; 3 N. H. Rep. 32; 7 Greenl. 399 ; 16 Maine R. 45 ; 17 Maine R. 444 ; 1 Fairf. 189; 4 Greenl. 44 ; 20 Maine R. 154; 1 Hill, 545; 7 Pick. 118; 8 Pick. 178; 19 Pick. 511 ; 1 Mete. 284; 2 Kent, 243 and 235; 7 Greenl. 76 and 118; Chitty on Con. 276; Angel & Ames on Cor. 239 and 250; 6 Wend. 475.</p> <p>contending that it was the collector’s duty to collect the taxes in any way, he chose, and pay them over to the town. If he neglects to collect and pay over the amount of the taxes committed to him, the town has a remedy upon the bond, and it is no excuse to the collector, that he has neglected to perform his duty. The town, therefore, is not benefited by any expenses incurred by the collector in obtaining payment of his taxes. If the collector should take property and sell it for the purpose of obtaining payment, or should advertise the land, the town would not be holden to the person, who should keep the goods or should publish the notice. Such expense is a charge upon the goods or upon the land. Nor does the collector’s bond to the town cover any expenses of this description.</p> <p>But the case finds, that the collectors employed the plaintiff to perform the services charged, without attempting to make the town liable. This excludes the supposition, that the town is liable.'</p> <p>In the collection of taxes, the collector acts on his own account, and is no more the agent of the .town, than the sheriff of the county would be, in case he collected them.</p>

<p>Exceptions from the Western District Court, Goodenow J. presiding.</p> <p>This was an action of assumpsit on a note of hand, dated March 30, 1844, given by the defendant to Peter H. McAllas-ter for fifteen dollars. The plaintiff to sustain his action read the note to the jury.</p> <p>The defence to the note was a want of consideration and a breach of warranty. To maintain this defence the defendant proved that sometime prior to March 30, 1844, McAlIaster exchanged a pair of oxen with the defendant, which were the property of the plaintiff, for a pair of steers, receiving the defendant’s note for twelve dollars, as difference between the cattle. That on the same day McAlIaster returned the steers to the defendant, together with the note, and said he did not consider it a trade, as said Bryant would not consent to so swap ; and that Bryant had directed. him to say to the defendant that the defendant must send him a note of fifteen dollars, or change back. Whereupon some conversation ensued in relation to a bunch then on the jaw of one of the oxen, and McAllaster said that the bunch would not injure the ox, and that he would warrant the bunch never to injure or hurt the ox ; that the defendant then said, that if MbAllaster would warrant the bunch not to injure the ox, he would give the fifteen dollar note; and thereupon the defendant gave the fifteen dollar note in suit, upon condition that McAllaster would warrant the bunch not to injure the ox, and the warranty was so made; that the defendant worked the oxen some in the months of April, May and June following; that about the middle of said June, and prior to the commencement of this suit, the defendant told the plaintiff that McAllaster warranted the bunch not to injure or hurt the ox, and proposed to give the plaintiff three dollars and give up the trade, or refer the matter to three disinterested men ; that McAllaster was present and denied that he made the warranty aforesaid, and Bryant made no reply ; that the bunch became worse and the ox began to fail in said May, and continued to fail; that the ox was so injured by the bunch that in September following the said defendant killed him ; and the defendant suffered damage by reason of the bunch.</p> <p>McAllaster did not make any warranty, when he first traded, nor was there any evidence, that he had at that time any authority from the plaintiff to make any trade whatever with the defendant.</p> <p>Upon this evidence the counsel for the defendant insisted, that McAllaster was authorized by Bryant to make the warranty aforesaid, so as to make the said Bryant liable for said warranty; and if not, the acts and doings of the plaintiff in putting the fifteen dollar note in suit was an adoption and ratification of the acts and doings of McAllaster in taking said note, and rendered the plaintiff liable for the warranty made as aforesaid.</p> <p>The Court instructed the jury, that although under a general authority to sell or exchange, an agent might be enabled to make a warranty which would be binding on his principal, yet. under the circumstances of this case, it was the opinion of the Court, that such an authority could not. be reasonably inferred. and that the receiving the note without knowledge of any such warranty was not an adoption or ratification of it; and that the suit on the note, after the defendant stated in June to the plaintiff that McAllaster made a warranty, and it was denied by McAllaster, was not an adoption or ratification of the warranty.</p> <p>The verdict was for the plaintiff, and the counsel for the defendant filed exceptions to the opinions and rulings of the Court. ■</p>

Debt on a judgment recovered against the defendants, Day and Farrington, by the plaintiff and his deceased partner, Walter W. Bailey, at the Supreme Judicial Court for the county of Cumberland, November Term, 1837, for $80,27, debt, and $7,86, costs of suit. The defendants, with the general issue, pleaded by brief statement: — 1. That the judgment had been paid in full before the commencement of the suit. 2. Accord and satisfaction. 3.

This case came before the Court on a demurrer to the declaration. The defects considered by the Court, in their opinion, will be found therein. It therefore becomes unnecessary to notice the other causes of demurrer, or the arguments in relation thereto, in support of the demurrer, said that this was a penal action, and that the declaration should contain every averment materia] to sustain the action, or the declaration must be adjudged bad, on demurrer.

<p>It is not essential to the validity of the proceedings of two justices of the pence and of the quorum, who may administer an oath to the principal in a poor debtor’s bond, that the justices should be selected and org¡inizs¡d as a Court within the hour appointed in the notice, as the time of the intended disclosure. There may be cases where the proceedings will be uphold, although the selection and organization did not take place until after the hour named in the citation had passed. . .</p> <p>To save a forfeiture, a liberal construction should be given to a statute.</p>

ExceptioNS from Western District Court, Goodenow J. presiding. Trespass for a pair of oxen. The plaintiff proved, that he was in the possession of the oxen, and that they were taken and driven away by the defendant. The plaintiff also proved that lie was assignee in bankruptcy, of one Parlin, and alleged, that the oxen were his property at the time of the bankruptcy.

The parties agreed, that the action should be determined upon a statement of facts. The plaintiff and defendant are citizens of Massachusetts, and were so at the time of the commencement of this suit. The action was for labor done and materials furnished, to the alleged amount, fi 1030,84, in that State, after the passage of the insolvent law of Massachusetts in 1838.

Assumpsit. The writ was dated Sept. 27, 1843, and contained a special count on the paper hereinafter mentioned, and a count for money, had and received. At the trial before Shepley J. the plaintiff introduced a paper in evidence, a copy of which follows: — “Bangor, June 7, 1838.

<p>Where exceptions may bo alleged in the District Court, questions arising at the term of the Court at which the exceptions are taken, can alone ho presented. The regularity of the proceedings at any former term of the Court cannot bo presented by exceptions at a subsequent term.</p> <p>Every Court of record has power over its own records and proceedings, to make them conform to its own sense of justice and truth, so long as they remain incomplete, and until final judgment has been entered.</p> <p>The authority to vacate a final judgment, irregularly entered ata former term, has also been asserted and exercised. And it is the well established practice and course of proceedings in such Courts, to regard all actions in which a final judgment has not been entered, whether on the docket of the existing or a former term, as within the jurisdiction and control of the Court.</p>

This was an action of debt on an award of referees. At the trial before Shepley J. the plaintiffs offered in evidence, an agreement to refer, bearing date on September 15, 1843, and signed by Messrs. Randall and Whitman, as attorneys for one party, and by J. S. Sewall, for the other party. Its introduction was objected to, by the counsel for the corporation, on the ground, that Messrs.

The parties agree to the following statement of facts, viz “ This is an action on the case for obstructing a water passage claimed by the plaintiff on a creek emptying into Kenne-bec. river in the village of Bath, into which the tide flows above the plaintiff’s lot, which is about 85 rods from said river. “Feb. 10th, 1797, Edward H. Page, conveyed to John Low, the plaintiff, and one Elijah Low, a lot of land in Bath, fronting seven or eight rods on Washington Street, and ten…

The defendants were defaulted, and the only question in the case was, whether Ebenezer Clapp and Charles Clapp, Jr. should be charged as the trustees of Evans & Co. on their disclosures. The facts are sufficiently stated in the opinion of the Court. The order referred to, was in these terms:— “ Bath, August, 21, 1843. “Messrs.

<p>Where an attachment of additional personal property was made upon a writ by the direction of persons liable upon the note in suit, but not parties to the action, and the officer declined to make a return of the attachment • unless the property was receipted for by a receipter approved by them, and such receipter was procured by them, and the return of the attachment made, and afterwards, the plaintiff, finding'the return of the attachment upon the writ, but having no knowledge of the circumstances under which the attachment was made, claimed the benefit of it, it was held, that the officer was responsible to the plaintiff for the safe keeping of the property, so that the same might be taken on execution to satisfy the judgment.</p>

<p>Where fraud is alleged, and all the representations made by the party to the witness were in letters to himself, and the letters are introduced in evidence, the statements of the witness, of their contents, his motives and inferences, are all inadmissible, and are to be disregarded.</p> <p>If there be any just ground of complaint that the agent to in afeo sale of a mortgage on real estate, who had slated that a certain price was the most he could obtain for it, when it was of much greater value, aud it was sold for that price, had in fact himself become the purchaser, the proper mode for the principal to obtain redress, in a court of equity, for such on injury, is not to make an allegation of fraudulent representation, but to call upon the agent to annul the assignment, or to account to the principal for the true value.</p>

<p>This was a bill in equity brought by Denny & Dutton, merchants of Boston, against Gilman, Williams & Dow, formerly merchants in the city of New York.</p> <p>The facts appear in the opinion of the Court.</p> <p>As the arguments of the counsel required nearly fourteen hours for their delivery, it is obvious, that the limits permitted' to any single case preclude the publication of any sketch which would do them justice.</p>

The case came before the Court upon the following report of the trial before Whitman C. J. This was an action on the case brought by the plaintiff against the defendant as one of the stockholders of the Long-ley Stage line Gompany, to recover of him in his individual capacity the amount of the judgment in favor of the plaintiffs against the Longley Stage line Company.

<p>Assumpsit to recover the amount of expenses incurred by the plaintiffs in the relief and support of John Beal, his wife and two children, who were alleged to have fallen into distress, in Clinton, and whose legal settlement was averred to have been in York.</p> <p>At the trial before Whitman C. J. certain facts were admitted, and fifteen witnesses were examined, introduced by the one party, and by the other, whose testimony is given in the report of the case. After the witnesses had been examined, the case was taken from the jury; and the parties agreed, that it should be submitted to the Court upon the evidence, the Court to draw such inferences as a jury could properly draw, and to enter such judgment, as should be deemed legal, upon nonsuit or default.</p> <p>The facts admitted, and what the Court considered to have been proved by the testimony, appear in the opinion of the Court.</p> <p>citing, Garland v. Dover, 19 Mai'ne R. 441 ; Corinna, v. Exeter, 13 Maine R. 321; Poland v. Wilton, 15 Maine R. 363.</p> <p>citing, 10 Pick. 77; 21 Maine R. 357; 3 Greenl. 455; 4 Greenl. 47 ; 5 Pick. 37 ; 17 Pick. 126; 1 Mete. 42; 3 Greenl. 136 and 205; 5 Greenl. 143; 16 Maine R. 427; ¿8 Maine R. 376; 19 Maine R. 441; 13 Maine R. 321; 14 Mass. R. 396 ; 23 Maine R. 410; 1 Fairf. 85. •</p>

This case came before the Court upon the following statement of facts by the parties. “ The parties agree to submit this case to the Court on the following facts: — “ The suit is trespass qua. clau. The writ is dated May 19th, 1846, describing the locus in quo, as part of a tract commonly called and known as the Pársonage lot in Gardiner.

This case came before the Court, upon the following exceptions, taken by the counsel for the defendants to the ruling of Tenney J. presiding at the trial. This was an action of assumpsit to recover of the defendants, as owners of the schooner Mary and as common carriers, pay for certain property, shipped on board of said schooner by the plaintiff in the fall of 1841. It was admitted by the defendants, that the owners of the vessel were common carriers.

The action was assumpsit, and was brought to recover the value of six hundred sugar box shooks, alleged to have been shipped on board a schooner called the Nancy, owned by the defendants, and lost from the vessel in a voyage from Gardiner to Boston. In the first count the plaintiffs claimed contribution from the defendants for the losses sustained, upon the principle^ of a general average.

<p>This was an action of trespass, alleging, that the defendant took 3000 pounds of wool, the property of the plaintiff, and converted the same to his own use on January 5, 1842. The defendant pleaded the general issue, and filed a brief statement setting forth that he was sheriff of the county of Franklin; that Joseph Covill was his deputy ; that Covill had an execution for service recovered by the Freeman’s Bank against the Readfield Cotton & Woolen Manufacturing Company ; that the company having no property or estate, Covill, after due notice to the plaintiff, took the wool named in the declaration to satisfy the same execution in part, and sold the same for that purpose, the plaintiff being a stockholder in that company when the debt was contracted.</p> <p>At the trial before Shepley J. it was admitted, that the defendant was Sheriff, and that Covill was his deputy. The defendant introduced copies of the writ, judgment and execution in favor of the bank agatast the company. The execution issued on December 9th, 1841. The debt, upon which the judgment was recovered, was contracted on July 27th, 1841. The return of W. Y. Brown, a deputy sheriff, and the return of Covill are to be copied and annexed.</p> <p>A book, purporting to be the book of records of the company, was produced, and Josiah Perham, Jr. introduced by the plaintiff, testified that he was the last clerk of the company, and that the book was used in the meetings of the corporation as its book of records. The following is his certificate of an extract from the records, read by him.</p> <p>“ The following is contained on the stock book of the Read-field Cotton and Woolen Manufacturing Company.</p> <p>“Dr. Samuel G. Stanley Cr„</p> <p>1841 Jan. 4, To forty-eight shares No. 401 to 448 inclusive, transferred by J. Mooaer, '1841 July, 31 By 48 shares >48 No. 401 to 448 inclusive, I | transferred to Sargent & J ^ Huse.”</p> <p>Perham testified, being objected to, that the plaintiff sold his shares to Sargent & Huse, the latter part of June or fore part of July, 1841, and received an obligation from them to pay for them ; and delivered to them the certificates ; that he was then agent of the company, and that Huse delivered the certificate to him a few days, not more than ten days after, and wished him to have the shares transferred, and that he told him he would take them down to Readfield and have them transferred for him ; that he thought he did not go down until the 31st day of July, 1841, and on that day handed the certificates to the clerk, and asked him to make the transfer upon the books; that the clerk desired him to make the entry upon the books and he did so at the time ; that the par value of a share was |js25 ; that Coveil called upon him with the execution to know if there was any property of the company to satisfy the execution, and was informed that there was not and that there were no debts then due to the company which were good and whicii had not been transferred.</p> <p>The cause, by consent, was taken from the jury and is submitted to the decision of the Court, upon this testimony or so much thereof as may be .legal, and the Court is to enter such judgment as the rights of the parties may require.</p> <p>The following are the copies of the returns of the officers referred to: —</p> <p>“Kennebec, ss. December 9, 1841. I have made diligent ■search to find corporate property of the defendants wherewith to satisfy this execution and' can find none, and the same is in no part satisfied. “ W. V. Brown, Dep’y Sheriff.”</p> <p>“Franklin, ss. December 20, 1841. I have made diligent search to find corporate property of the defendants wherewith to satisfy this execution, and can find none, and the same is in no part satisfied with corporate property.</p> <p>“ Joseph Coveil, Dep’y Sheriff.”</p> <p>Then follows upon the execution a return by Covell, dated December 24, 1841, of the taking and sale of the wool, in part satisfaction of the execution.</p> <p>It. Goodenow and Randall, first gave a history of the legislation of this State with respect to corporations, and said that it was certain, that there was no law making stockholders of a corporation liable for its debts when the act incorporating the Readfield Cotton and Woolen Manufacturing Co. was passed in 1883. If the plaintiff was made liable by any law for the debts of the corporation, it was by the st. 1839, c. 400, § 3. The st. 1831, c. 503, gives no power to alter the liabilities of stockholders in a corporation by a general law. It merely provides, that the act creating the corporation may “ be amended, altered or repealed at the pleasure of the legislature.” This has never been done, or attempted to be done. It was contended, that the legislature had no power, under the constitution, to impose new and additional liabilities upon the stockholders of this company, and that the statute of 1839, so far as it attempted to do it, was unconstitutional and void, and could furnish no justification for the acts of the deputy of the defendant. 2 Cranch, 338..</p> <p>It was also contended, that as the plaintiff was not a stockholder in the company when this action was commenced against it by the Freeman’s Bank, that .he could not be presumed to haye any knowledge of the suit, and if he had, he had no power to appear and defend the action. This therefore is an attempt to take the property of the plaintiff, to satisfy an execution issued upon a judgment to which he was not a party, and against which he had no opportunity to make defence. It is but the taking of the property of one man to satisfy a judgment against another.'</p> <p>The plaintiff was not a stockholder in the corporation at the time their debt to the Bank was contracted, and stockholders only are liable- under any act. Whenever a man sells out his stock, he can no longer be a stockholder in the company, and could hold no office required to be holden only by a stockholder. The entry of the transfer upon the books of the corporation is always made after the sale, and merely for the convenience of the purchaser.</p> <p>But if the plaintiff was liable to have his property taken to satisfy an execution against the corporation, on the ground of his having been a stockholder, the justification set up fails, because it does not appear, that such preliminary steps were .taken by the officer, as the law requires, before the property of the individual can be taken on an execution against the corporation. The officer must first certify on the execution, that he can find no corporate property or estate, before he can touch the individual property of the stockholder. The words, property or estate, are used several times in the statute, and must have been understood to have meant different things, and not the same. The officer is bound to make an explicit return of his doings, and nothing can be presumed in his favor.</p> <p>It was also contended, that the return by the officer of the sale on the execution was defective, because it merely stated, that “ he had given forty-eight hours notice of his intention,” &c. without stating the amount of the debt or deficiency.</p> <p>said that the plaintiff was a stockholder in the corporation when the debt to the Bank was contracted. The debt was contracted on July 27, 1841. The statute 1888, c. 325, then in force, provides that the shares may be transferred by endorsement and delivery thereof; but specially provides, that “ the title to such stock shall not pass from such proprietor, until such transfer has been so far entered on the corporate records, as to show the names of all the parties thereto, and the date of the transfer.” No entry whatever was made of any transfer from the plaintiff until July 31, 1841, and the entry then made is not a compliance with the requisitions of the statute.</p> <p>The plaintiff' was liable for the debts of the corporation to the amount of his stock when the debt to the bank was contracted, and so continued until one year after the record of the transfer of his stock. The statute of 1831, c. 503, gave the legislature the right to amend, alter or repeal any act of in corporation, and the ileadfield Company was incorporated under the provisions of that act. The si. of 1836, c. 200, made stockholders in corporations, created after that time, liable for the debts of the corporation to the amount of the stock held. And the stat. 1839, c. 400, § 3, subjected stockholders in corporations created since the passage of the act of 1831, to all the liabilities imposed on stockholders by the statute of 1836, so far as it respected debts, contracted as this was, after the act of 1839 became a law. The rights of the plaintiff were saved by the exception in the repealing act -r and if not, c. 76 of the Rev. Stat. continued the liability of stockholders for debts of the corporation contracted as this was.</p> <p>The return of the officer, that he had made diligent search for property of the corporation was sufficient. The statute says property or estate. Either word is enough without the other, as they have precisely the same meaning.</p>

The facts in the case appear in the opinion of the Court, so far as it respects the subject matter of the opinion. Nothing is said in the proceedings, in any way, respecting appraising the notes disclosed.

Tins was a petition for a certiorari to the end, that certain proceedings in locating the lands reserved for public uses in certain townships, in which they were interested, might be quashed. No copy of the petition came into the hands of the Reporter. The facts sufficiently appear in the opinion of the Court.

The writ commenced in the usual form of a blank writ of attachment, commanding the dfefendants, William S. Folsom and Hiram Folsom, to appear at the November Term of the Eastern District Court for this county, 1845, to “answer unto the State of Maine in a plea of debt, for that whereas an indictment, found by the grand inquest of said county against said William S. Folsom for the crime or offence of larceny,” at the November term of the Court in this county, 1844, was…

The facts in this case are stated at the commencement of the opinion of the Court. In the assignment of the Goddard lease by the plaintiff to the defendant, there was a special provision, that the defendant should account to the plaintiff for the rent received under it.

At the trial before Tenney J. nearly twenty witnesses were examined, and several depositions, deeds, agreements, receipts, notices and records were read ; and after all the evidence had been introduced, on each side, the parties agreed, that the whole Court should upon that evidence, so far as the same is legally admissible or not objected to, render such judgment as the law applicable thereto should require; and that the Court might infer any facts, that a jury would be…

<p>Writ of entry. This is the same action in which the case arose reported in vol.- 24, p. 332,</p> <p>At the new trial before Tenney J. it was admitted, that on April 10,1833, the demandants conveyed the premises in controversy to Samuel Moore ; that he, on the same day, reconveyed the same in mortgage; that the wife of the tenant was then the wife of Moore, and did not join in the conveyance or relinquish her right of dower; and that Moore afterwards died intestate. The tenant produced the record of the proceedings in the probate court, assigning dower in the premises to the widow on Oct. 20, 1834; and shew that Kendrick was appointed administrator of the estate of Moore, December 31, 1833; that Kendrick was duly licensed as administrator to make sale of the real estate of Moore, and did make sale of the premises demanded on Dec. 1, 1834, to the demandants; that as administrator, he gave them a deed of - all the right, title and interest which the said Moore had at the time of°his decease to redeem the demanded premises from the mortgage aforesaid, reserving the widow’s dower which had been assigned and set out to her before that the demandants accepted that deed, and caused it to be recorded; that on the last Monday in March, 1840, the administrator rendered into the probate court, his account, wherein he charged himself with the proceeds of the sale of the real estate to the demandants; and that on obtaining the license he gave the proper bond required before the sale of real estate.</p> <p>The register of probate, called by the tenant, testified, that he had been register about four years in the county of Penobscot, has made search and finds the petition, the license and the bond, but finds no return of sale, of oath before sale, or advertisement, and nothing subsequent to the granting the license and filing the bond, excepting the said account of Kendrick, as administrator, on the files in the probate office.</p> <p>Joseph Kendrick, the administrator, called by tenant, testified that he had the license to sell, and he had before him the form of oath, but does not recollect distinctly having taken it; that he knew he was bound to do so, before the salo, and that if he did not, he should make himself personally responsible; that it was his intention to do his duty according to law; that he has no distinct recollection, that he did not take the oath ; that he does not distinctly recollect, that he made out a return of his doings, but kept all the probate papers separate from others, carried them to the probate office, and shew them to the Judge, and took away such as the Judge thought proper that he should take, and left the remainder; knew that it was his duty to make a return, and intended to do his duty, and has no recollection that he did not do it. Notice of sale was admitted to have been legally given. The demandant’s counsel objected to the competency of Joseph Kendrick, and his testimony in the case was received subject to objection.</p> <p>After all the evidence had been introduced, it was agreed by the parties, that it should be reported, and that the Court should enter such judgment upon the facts, so far as they were legally admissible, upon nonsuit or default, as the law requires; and that they have the power to make such inferences as a jury would do.</p> <p>contended that, the assignment of dower was illegal, and that he had a right to make this point notwithstanding the former decision.</p> <p>We did not introduce the administrator’s deed, but objected to its introduction, until proof had been made, that the administrator had done all that the law requires to make the sale legal. That was not done. There was no evidence, that the oath had been taken. The deed, therefore, passed nothing to the demandants; was entirely void ; and the plaintiffs cannot thereby be estopped from recovering upon their perfect title under the deed of mortgage. Stat. 1821, c. 51, <§> 69; Parker v. Nichols, 7 Pick. 111.</p> <p>said the only question here was, whether the oath was takeil by the administrator, or rather whether the sale was invalid in consequence of an omission by him to take the oath. Every thing besides was decided in the former case between the parties. 24 Maine R. 332.</p> <p>He contended, that there was sufficient evidence to show, that the oath was taken by the administrator prior to the sale.</p> <p>He also contended, that the demandants were equally estop-ped by their deed, whether the administrator did-, or did not take the oath. They cannot impeach their own title; and we did not do it by introducing the deed.</p>

Trover for a quantity of mill logs, cut by the defendant and taken from lots numbered 16, 17 and 18 on Penobscot river, in the town of Howland. The plaintiff proved title in himself to these lots, by deed from the then proprietor thereof in 1824.

<p>It-is the duty of the Judge to instruct the jury upon every point of law raised liy the case, if thereto requested by either of tho parties ; but he is not bound to give the instruction in the language of the request, even if tho principle therein contained bo correct. In determining whether the instructions requested were properly withheld or given, they must bo examined in connection with the cause of action, the proof adduced, and the other instructions given. But it is never required, that the jury should be instructed upon abstract principles of law, or upon hypothetical points and cases.</p> <p>In an action against a town to recover damages for an injury alleged to havo been caused by a defect in a highway, the defendants aro not bound to prove that the plaintiff’s carelessness was the cause of the injury, to be relieved from liability ; but the plaintiff is bound to prove, tjiat he was in the use of ordinary care at the time of the accident, or he is not entitled to a verdict.</p> <p>If there be a defect in the road, however small, which occasions an injury', the party injured using common and ordinary care, the town is liable.</p> <p>If a road be safe and-convenient, it is all that is required of the town. Such a state of repair-in a road as would free a town fronrexposure to an indictment and conviction, would protect it'also against a claim for damages for an injury sustained by an individual, while traveling thereon.</p> <p>The law has not prescribed what imperfections in a road will constitute tho defect referred to in tho statute; it is a fact for the jury to settle, what condition of the road would render it safe and conveniónt or otherwise.</p>

<p>Trover for a yoke of oxen; The defendant justified the taking, as a constable, on a writ in favor of Lowell against Joseph Smith, alleging the property of iho oxen, at the time, to have been in Smith. The only question made at the trial before Allen, District Judge, was, whether the oxen were the property of the plaintiff or of Smith, on August 18, 1843, the time of the attachment.</p> <p>The whole of the evidence is given in the exceptions, and enough of it is stated in the opinion of this Court to understand the- application of the law to the facts.</p> <p>The defendant, at the trial, contended that upon the evidence, the action could not be maintained ; that the papers of July 14, 1841, were conclusive against the plaintiff; that the payment of the sixty-five dollars rendered the sale absolute; that by the terms of the contract, as proved, it was a sale, and the 'property passed absolutely, leaving it optional with Smith either to return the oxen or to pay the money; and that the acknowledgment of July 8, 1842, could not pass the property from Smith to the plaintiff.</p> <p>The defendant also contended that the transactions relative to the oxen, between the plaintiff and Smith, was fraudulent as to Smith’s creditors.</p> <p>Allen, District Judge, instructed the jury, that the plaintiff had shown property in the oxen, unless the defendant proved, that Smith had paid the sixty-five dollars in pursuance of the terms of the contract of July 14, 1841 ; that the receipt signed by the plaintiff, and dated July 14, 1841,. was evidence of such payment, and, if unexplained, would show such performance on the part of Smith as would vest the property of the oxen in him.</p> <p>The presiding Judge further instructed the jury, that if from the testimony of Wood, and the other evidence in the case, they believed, that the payment by Wood to the plaintiff, referred to in said receipt, was prior in point of time to the contract dated July 14th, for the sale of the oxen, that then such payment could not be in discharge of the- proviso in said contract of sale ; and submitted it as a question of fact for them to determine upon 4he whole evidence in the case; that if they should find that said payment was made in the performance of the proviso in said contract, that they should render a verdict for the defendant, but if they should find that payment was not so made, they would return a verdict for the plaintiff.</p> <p>The defendant also requested the Court to instruct the jury, that there was evidence tending to show, that the transactions relative to the oxen between plaintiff and Smith were fraudulent as against Smith’s creditors, which instruction the Court declined to give, and gave the jury no instructions on the subject.</p> <p>To all which rulings apd instructions of the Judge the defendant excepted.</p> <p>Copy of paper dated July 14, 1841: —</p> <p>“ Borrowed and received of Warren George one pair of oxen nine years old, more or less, always subject to him or his order, life and limb of said oxen always at my risque during the whole time he may permit them to remain with me. And I do further agree to pay him a reasonable sum of money for the use of said oxen during the whole time he may permit them to remain in my hands.</p> <p>“ Provided nevertheless, if I pay him sixty-five dollars and interest from date hereof, which sixty-five dollars is also to be applied to certain notes, he, the said George, now holds against me, then the said oxen are to become my property, if said sixty-five dollars shall be paid on or before May 8, 1842.</p> <p>“Bucksporí, July 14, 1841.</p> <p>“ Joseph Smith.”</p> <p>Copy of indorsement thereon : —</p> <p>“ Know all men by these presents, that the within named George, permitted me, the said Joseph Smith, to change the within named oxen for him, the said George, to get another yoke of oxen, which oxen I do by this my signature acknowledge to be the property of the said Warren George.</p> <p>“ Joseph Smith.</p> <p>“ Bucksport, July 8, 1842.</p> <p>“Attest — Jonathan Wood.”</p> <p>Copy of the receipt: —</p> <p>“ Received of Joseph Smith, by Jonathan Wood, sixty-five dollars, to be applied to his notes, which notes said Smith gave him for land, when called for.</p> <p>“ Warren George,</p> <p>“ Bueksport, July 14, 1841.”</p> <p>contended, that Smith was an incompetent witness by reason of interest.</p> <p>But if Smith was a competent witness, his testimony was in-* admissible. It was not competent for the plaintiff to explain, control or vary the effect of the writings by parol evidence.</p> <p>The writing of July 14, 1841, signed by .Smith, was offered by the plaintiff as evidence of his title, and he should not have been permitted, as he was, to vary the effect of it by the testimony of Smith.</p> <p>The oxen attached were never the property of the plaintiff. The case shows, they were purchased and paid for by Smith long after his contract with the plaintiff.</p> <p>It was Smith’s election to return the oxen or pay the sixty-five dollars. They therefore became his property as soon as he received them. The instruction on this subject was erroneous.</p> <p>The Judge erred in refusing to give an instruction to the jury on the subject of fraud, as requested by the defendant. Lapish v. Wells, 6 Greenl. 193.</p> <p>said that the objections made to the admissibility of the testimony of Smith went only to his credibility, not his competency. He was not permitted to vary or contradict any writing by his testimony.</p> <p>The question of fraud was submitted to the jury, and rightly, as it was exclusively for their determination. But there was no evidence before the jury tending to prove fraud.</p> <p>The question whether the payment of the money was for the oxen, or towards the land, was properly submitted to the determination of the jury, as a matter of fací. The receipt is merely evidence of payment, and it was competent to show, when and for what purpose the payment was made.</p> <p>This was not a bill of sale, where it was left optional with the party, whether to pay the money or return the property. The writing expressly provided, that the oxen should remain the property of the plaintiff until payment was made.</p>

Debt on a bond from the defendant to the plaintiff, dated April 8,184:1. Mutual bonds were given.

The following is a copy of the exceptions: ■— “ Indictment found by the grand jury at the last Oct. term against the defendant for presuming to be and being a common innholder, on the first day of June last, and between that day and the finding of said bill, without being licensed therefor according to law, and without being duly authorized therefor. “ Plea not guilty.

<p>The District Courts of this State are Courts of the State, and when holden, are District Courts for the counties, and not for the districts. Tho allegation, therefore, “for the eastern district,” in an indictment found in a county within that district, is unnecessary.</p> <p>A description of the Court, in an indictment, as “ the District Court of the State of Maine, holden at Bangor in the county of Penobscot, for the county aforesaid/5 is a sufficient description.</p> <p>And in an indictment wherein the Court is so described, it is enough to allego, that a warrant, issued by order of tho Court, was a under the seal of said Court.55</p> <p>ín this country, usually, in an indictment, the place whore an offence is alleged to have been committed, is a town named, which is within a county also named, where the Court have jurisdiction; but it is not necessary, that the town should be stated, if the place mentioned is equally specific. If tho particular place named is shown to be within the county, over which tho Court have jurisdiction, it is sufficient.</p> <p>If an indictment alleged, that an offence was committed either within the town of E. or the town of H. in the county of Penobscot, without indicating more specifically the particular spot, there would be an uncertainty, which, in cases on this subject, has been held lobe fatal. But if it allege-that the acts, constituting the offence, were done on the Penobscot river, on a particular past of it, within the county, it is sufficiently certain.</p>

Assumpsit against Wadleigh, as indorser of a bill dated August 23, 1831, for $312,16, drawn in his favor, and by him indorsed, by E. S. Goodnow on Porter & Harlow, and by them accepted, payable in four months. The bill was duly presented to the acceptors, and protested for non-payment.

This action was opened for trial, and after the evidence was all before the jury, they agreed upon the following case, for the opinion of the Court, “This is a writ of entry, dated October 11th, 1841, brought to recover a certain lot of land lying in Hermon in this county. “ To maintain the issue on his part the demandant introduced a writ in favor of James Bartlett, of Dover, in the State of New Hampshire, against Samuel Smith and others, and the officer’s return thereon,…

As the opinion of the Court on some of the points was based on the particular language of the exceptions, a copy will be given, instead of the concise abstract usually made by the Reporter. “Writ of entry to recover 67 acres of land in Dixmont in this county, and for the mesne profits. Plea the general issue.

<p>Where the question to ho decided is the -validity of a sale of non-resident, unimproved hinds in an unincorporated place, to pay the taxes assessed thereon by the County Commissioners, to be expended in making a road, whether the doings of the County Commissioners having jurisdiction of the subject matter, can be impeached collaterally, or must bo considered as correct until reversed by certiorari, respecting which no opinion is given, the doings of the county treasurer in making the sale may be examined. And parol testimony is admissible to affect them.</p> <p>The county treasurer, in making such sale, is bound to a strict performance of his duties.</p> <p>The giving credit for the purchase money by the county treasurer, at such sale, renders it invalid against the original proprietor.</p> <p>In an action of trespass for mill logs, cut upon land of the plaintiff and removed to a distance therefrom, the true rule in the assessment of damages is, that the plaintiff should recover the value of the logs, as it was the moment after they wore severed from the freehold.</p>

This case came before the Court upon the following exceptions to the ruling and directions of the Judge at the trial. Whitman C. J. presiding. “ This is an indictment against defendant of four counts, the first of which charges him with forging an order, as set forth in said first count, which is to be copied as part of the case. The defendant moved that the government should be called on to elect one count, and which one, to proceed upon, but Court refused the motion.

Assumpsit. The action was originally commenced in this Court. The defendant filed an account in set-ofF. At the trial before Tenney J. the jury returned a verdict for the plaintiff for one hundred and ninety-one dollars and ninety-one cents.

This was an action of assumpsit on an account annexed to the writ, charging the defendant with the use of their bridge. The plaintiffs were incorporated by an act of this State in 1831, by the name of the “Middle Bridge Proprietors,” and empowered to erect a bridge “ in Calais, across the St. Croix river;” and to take toll from such as should pass over the same. The bridge was erected in the year 1832, and extended across the river, into the Province of New Brunswick.

<p>Witnessed notes, after the lapse of twenty years since' they became payable, are barred by the statute of limitations. Rev. St. c. 146, § 11.</p> <p>A mortgage security has not been deemed to be within any branch of the statute of limitations. He, who would avoid such security, must show payment; otherwise the mortgagee will not he precluded from entering upon and holding possession of the mortgaged premises.</p> <p>The mortgagor has not been allowed to defeat the right of the mortgagee to enter upon the land, or obtain possession thereof, by showing merely, that the personal security, to which the mortgage security is collateral, has become barred by the statute. But he has been allowed to allege payment, and for proof thereof, to rely upon the lapse of time, when it amounted to twenty years from the accruing of the indebtment.</p> <p>The lapse of twenty years after the debt secured by the mortgage became payable, has been deemed to be sufficient evidence of payment, in the absence of any countervailing considerations. In such case the fact of payment is admitted as a presumption of law, which may be removed by circumstances tending to produce a contrary presumption.</p> <p>Whether such presumption has, or has not, been removed by proof, or by circumstances, is a question for the determination of the jury.</p>

Trespass for taking a quantity of wood. The defendant, being sheriff of the county, admits the taking of the wood by his deputy, by virtue of an execution against the Frankfort Bank, the plaintiff being a stockholder of the bank at the time the cause of action accrued. The Frankfort Bank was incorporated and went into operation in 1836, and its charier was repealed on April 16, 1841.

This is an action of the case to recover the value of a quantity of square granite rock. Shepley J. presided at the trial.

A petition was presented and addressed to this Court, signed by Robert Harkness and others, all of Camden in the county of Waldo, in the following terms : —■ “ The petitioners respectfully represent, that a petition was presented to the Court of County Commissioners at an adjourned term of said Court, for the county of Waldo, on the second Tuesday of October, 1844, praying said Commissioners to locate and establish a county road from Fish’s mills, so called, in the town of…

<p>Assumpsit against the defendant as indorser of a note.</p> <p>The parties agreed, that the defendant, the payee of the note, indorsed it before it fell due, in this manner, “ Phineas Wood holden for the within note.” The makers of the note resided in the county of Waldo, and at the time the note fell due, and for one year afterwards, were of sufficient ability to pay it. No demand of payment was made upon the makers until six months after the note had become payable, and no notice of non-payment was given to the defendant.</p> <p>A nonsuit or default was to be entered according to the opinion of the Court as to the rights of the parties.</p> <p>said that the defendant, by his special indorsement, had made himself unconditionally liable to pay tiie note; and cited Bean v. Arnold, 16 Maine R. 251, as directly in point. He also cited Bead v. Cults, 7 Greenl. 186, and Bagley v. Buzzell, 19 Maine R. 88.</p> <p>As the defendant has thus made himself liable without demand or notice, the plaintiff has not lost his rights by delay. Cobb v. Little, 2 Greenl. 261 ; Page v. Webster, 15 Maine R. 249; Lane v. Steward, 20 Maine R. 98.</p> <p>contended, that there was á material distinction between the case relied on for the plaintiff', and the present case. In the case cited, the note was due when the indorsement was put upon it, and the indorser made himself immediately liable. Here the indorsement was made before the note became payable, and the plaintiff was holden to make use of due diligence. Here the defendant could derive benefit from a demand and notice, whereas in Bean v. Arnold, they would have been entirely useless, as they must have been made on the same day.</p> <p>This may be regarded as a guaranty ; and if so, the plaintiff’ was guilty of negligence, and the defendant is thereby discharged.</p>

One of the jurors, who rendered the verdict on the trial of this cause, was a justice of the town court of the town wherein he resided. This fact was unknown to the presiding Judge until the close of the term. The verdict was for the plaintiff, and the defendant moved to set it aside, because one of the jurors who gave the verdict was a justice of a town court.

<p>If the conveyance of a vessel, held as security for a loan, and the payment of the money loaned, are by the contract to bo simultaneous acts, it is sufii-eient for the party claiming from the oilier a performance of tile contract, to show a readiness and an oiler to perform. A formal and technical tender is not required of him.</p> <p>But in such case if a tender were necessary, it would be sufficient to show, that he had done ail that could be done on his part to accomplish what, by the contract, he vras bound to do.</p> <p>The rule, that if a thing become physically impossible to be done by the act of God, performance is excused, does not prevail, when the essential purpose of the contract may be accomplished. If the intention of the parties can bo substantially, though not literally, executed, performance is not excused.</p> <p>Where the fourth part of a vessel was convoyed to the master thereof, as collateral security for the payment of a sum of money' loaned, within one year; “it being well understood, that if said quarter of said vessel is not redeemed within the time above named, then it is to be considered as a bona fide sale; it being further understood, that if the vessel meets with any loss not covered by insurance, by not obtaining successful business, or any misfortune or casualty of any name or description, it is to be borne by you, (the mortgagor); and all net earnings and profits, after deducting insurance and charges of every name or kind, shall be paid over to you, when you claim to redeem her;” and insurance is effected on the vessel “ for the owners thereof; ” the vessel is lost, and the fourth part of the insurance money is paid to the representative of the mortgagee within the year, and the mortgagor within that timo claims the right to redeem, and to have the insurance money accounted for to him. It was held, that the mortgagor was entitled to redeem, and to have the amount received of the insurers for the loss accounted for to him.</p> <p>When a person leaves his usual place of residence with an intention of returning to it, and continues to be absent from it for seven years, without being heard of, ho is presumed to be dead. But the time when such presumption will arise, may be greatly abridged by proof, that the person has encountered such perils as might bo reasonably expected to destroy life, and has been so situated, that according to the ordinary course of human events, he must have been heard of, if he had survived. No general or certain rule can in such cases, be established; but each case must be decided by the competent tribunal upon proof of the facts and probabilities, that life has been destroyed.</p> <p>Where one, without lawful authority, assumes the administration and disposition of the estate of one deceased, and receives and pays out money belonging to the estate, although professing to act for the deceased on the supposition that ho might bo alive; he is liable to a creditor of the deceased, as erealtor dr son tort,</p>

McAllister was indicted for larceny. After a description of the Court, the indictment, in the first count, commenced with — “The jurors for the State aforesaid upon their oaths present, that Isaac C. McAllister of,” &c. took a quantity of sole leather, the property of William R. Hunt, setting out the facts and form of an indictment for simple larceny. There was a nol. pros, of the second count entered in the District Court.

<p>Debt on a bond, of which the following is a copy : —</p> <p>“ Know all men by these presents, that we, William H. Swett of Portland, in the county of Cumberland and State of Maine, Truckman, as principal, and Wm. Swett of Portland aforesaid, as surety, are held and stand firmly bound and obliged unto Ursula F. Robinson of Portland aforesaid, Widow, in the full and just sum of two hundred dollars, to the payment of which sum well and truly to be made to the said Ursula F. Robinson, her certain attorney, heirs, executors, administrators or assigns, we bind ourselves, jointly and severally, our heirs, executors and administrators, firmly by these presents. Witness our hands and seals this fourth day of September, in the year of our Lord one thousand eight hundred and forty. The condition of this obligation is, however, such, that whereas the said Ursula F. Robinson hath, upon her examination upon oath, taken before Charles Harding, Esq. one of the justices of the peace, in and for the comity of Cumberland, on the twenty-sixth day of August, in the year of our Lord eighteen hundred and forty, accused the said William H. Swett of being the lather of a bastard child, of which she has been delivered, and the said justice hath ordered him, the said William H. Swett to give sureties for his appearance at the District Court for the Western ‘District, next to be holdcn at Portland, in and for the county of Cumberland, on the first Tuesday of October next, then and there to answer to the said accusation: Now if the said William IL Swett shall appear at said Court, and answer to the said accusation, and abide the order of Court thereon, this bond shall be void; otherwise shall remain in full force and virtue.</p> <p>' ‘ ~ •]</p> <p>The defendants, with the general issue, filed a brief statement, wherein it was alleged, that the plaintiff, at the time the bond was taken and at the time of the commencement of the suit, was a married woman, having a lawful husband alive ; and that the judgment of affiliation, upon the default of W. Ii. Swett, was illegally and fraudulently obtained; and that the said bond was procured-by duress and was void.</p> <p>At the trial before Whitman C. J. the signatures of the defendants to the instrument declared on, were admitted to be genuine. The plaintiff introduced in evidence a copy of a judgment of affiliation against William II. Uwett, rendered upon uefanit in a bastardy process instituted by her against him. There was testimony introduced by each party with respect to the questions, whether the alleged husband of the plaintiff was or was not alive at the times mentioned, and in what manner the proce,ss was entered and the default made.</p> <p>A report was made of the whole evidence, and thereupon it was agreed, that if, upon the evidence, the plaintiff could maintain her action, the defendants were to be defaulted, and the Court were to assess the damages ; and if not, the plaintiff was to become nonsuit.</p> <p>upon the point on which the</p> <p>decision rested, said that it appeared in the case, that all the parties were inhabitants of and resident in Portland during the whole time; and contended, that the municipal court had, at that time, exclusive jurisdiction of tlie subject matter of the complaint, and alone had authority to issue the warrant and direct the bond to be taken; and therefore, that Mr. Harding had no jurisdiction or authority in the matter, and the bond, taken as this was, was entirely void; not voidable merely, but wholly void. He cited st. 1821, c. 72: st. 1825, c. 294; st. 1826, c. 324; Paine’s C. C. R. 55.</p> <p>contended, that, as the judgment of affiliation is still in full force, and the condition of the bond was to perform that judgment in all its requirements, the judgment cannot be incidentally reversed in this suit. So long, therefore, as the judgment remains unreversed, it binds the parties to it. The bond was an incident to the prosecution, and a part of the process ; and the judgment rendered in that process is conclusive upon this point in the present case. They also contended, that the justice had concurrent jurisdiction with the municipal court on this subject.</p>

This was an action for use and occupation of a parcel of flats and part of a wharf, from August 31st, 1842, to Dec. 31st, 1844. The general issue was pleaded and joined; and the action was tried at the Nov. Term, 1846, Tenney J. presiding.

This was an action of assumpsit on an agreement given by the defendant to the plaintiff, a copy of which, follows:— “ Portland, 9th mo. 6th, 1845. I the subscriber, hereby agree to furnish David Cummings with one hundred and forty backs and strips for belting, to be delivered in Portland, at eighteen cents per pound, by the first day of December next. “ Oliver Dennett.” After reading the contract to the jury, the plaintiff produced Wm.

Trespass quare clausum for taking and carrying away five loads of “ marsh mud,” from the close of the plaintiff in Scarborough, described as “called and known as the Thatch Islands, in Scarborough or Blackpoint River, and near the mouth, of Jonas’ creek, and the same purchased by said plaintiff of one flunking Leavitt,” One of the witnesses called by the plaintiff was his grantor, flunking Leavitt, who testified, that he had no other title to the premises, than by…

<p>No particular words or form of words are required by the statute in applications to the County Commissioners for the location of roads; and the greatest technical accuracy and precision are not to be expected. Nor is it necessary, that those who are authorized to judge of the necessity and convenience of ways should use technical terms in their adjudication and location, provided their intention is manifest, and they have jurisdiction of the subject.</p> <p>The jurisdiction of that court does not fail, merely because the word, “ road,” instead of highway, is used in the petition or in the record, if an examination of the whole will show what description of road was intended.</p> <p>It is not necessary that the road located should be described in the same language used in the petition therefor. It is sufficient, if there be a substantial compliance therewith.</p> <p>County Commissioners, under the Revised Statutes, have power to lay out a highway wholly within the limits of one town.</p>

Wiht OF ENTRY. The case came before the Court on exceptions to the rulings and instructions and refusals to instruct of Tenney J. who presided at the trial. The testimony at the trial was given in the exceptions, and copies of the writ, judgment, execution and levy in favor of John B. Smith against Benjamin Dillingham, were referred to as part of the case.

The parties agreed upon a statement of facts, from which it appeared, that John Waterhouse, on July 13, 1836, made a mortgage bill of sale of one quarter of the hull of a vessel, then upon the stocks, afterwards called the barque Horace, to the defendant, to secure a debt due for money advanced to assist in building the vessel; that afterwards, in April, 1843, it was decided, that this bill of sale was invalid against attaching creditors of Waterhouse for want of a delivery,…

Assumpsit for money paid and money had and received. All the evidence written and parol, saving that there was no copy of the bond, is found in the exceptions, but the facts in the case sufficiently appear in the opinion of the Court. The trial was before Tenney J. The counsel for the defendants seasonably objected to the ¡proof of any declarations or sayings of any officer of the Bank.

<p>Where one erects a building upon his own land immediately adjoining the land of another person, and puts out windows overlooking that neighbor’s land, he does no more than exercise a legal right; and he cannot by the continuance of such windows without obstruction for more than twenty years acquire any prescriptive rights or easements in favor of ancient lights, which will enable him to sustain an action against the adjoining owner for erecting fences or buildings, by means of which such lights are obstructed^</p> <p>The Bev. Stat. c. 147, § 14, was not designed to create or give any such rights as are therein mentioned, or to determine when, or upon what terms, they had already been acquired ; but to prevent their future acquisition without conformity to certain prescribed conditions.</p> <p>But if the English doctrine, that a grant or other contract securing to the party an unobstructed flow of light and air will be presumed from the use of windows on his own land, for twenty years, were the law of this State^ no such right could be acquired by such use during the time that the person claiming the right was in the occupation of the adjoining land as tenant of the owner.</p>

Exceptions from the Western District Court, Goodenow J. presiding. A copy follows: — This was an action of debt, on a poor debtor’s bond, in which said James Irish was principal, and Marshall Irish and John Wingate were sureties. Said bond may be referred to, but need not be copied. Tiie execution of said bond was admitted.

The principal debtors were defaulted, and the question was merely, whether the trustees, partners, doing business in the name of T. W. & D. W. O’Brion, should be charged or discharged by reason of a balance of §334,83, admitted to be due on book account.

Exceptions from the Western District Court, Goodenow J. presiding. This is an action of debt brought on the 51st c. of the Rev, St. and the amended statute passed March 9, L844.

<p>Where the plaintiff proved, that he had delivered to the defendants, who were common carriers, a box, to be carried to a certain place; that the box was not delivered; that he had made a demand thereof; and that the defendants admitted its loss, and then “offered to show by his own testimony (it not appearing that he had any other means of showing it,) what was in said box and the value of the articles,” the declaration having alleged, that the box contained medical books, medicines, surgical instruments and chemical apparatus; it was held, that the plaintiff’s oath was inadmissible.</p>

This action was brought to recover the sum of 80,31 for the support of certain paupers, whose settlement was alleged to have been in Lebanon. The notice to Lebanon was delivered on Feb. 27, 1845.

Assumpsit .upon a promissory note, dated Feb. 25, 1831, given by the defendant to the intestate, for the sum of fifty dollars and interest.

This case came before the Gouvt on the following exceptions : — “ This is an action of assumpsit for contribution of an alleged co-surety. The plaintiff, to sustain the issue on his part, introduced a note of which the following is a copy : — “ For value received we jointly and severally promise to pay the President Directors and Company of the Rochester Bank, or order, two hundred dollars in sixty days and grace. “ 1844, December 16th. “ Jas.

<p>Assumpsit on a note dated at Bangor, Jan. 29, 1839, for hi 202, payable at the Suffolk Bank, Boston, in sixty days, given by the defendants, Lane & Sandford, to Joshua Lane, or order, and by him indorsed to the plaintiffs, Jenness & Lane.</p> <p>At the trial before Shepley J. the defendants offered in evidence a receipt, a copy of which follows : —</p> <p>“Bangor, Aug. 22, 1840. Received of John Lane his note for fifty-three dollars twenty-seven cents, indorsed 1). Mossman, dated this day, at thirty days; now it is agreed, that if this note is paid at maturity, the said Lane is to be discharged from his liability ón note to Jenness & Lane dated Jan. 29, 1839, for two hundred dollars at sixty days,</p> <p>“ John S. Jenness, for late firm of Jenness & Lane.”</p> <p>The defendants also introduced the depositions of Hollis Bowman and David Mossman. The contents of these depositions sufficiently appear in the opinion of the Court.</p> <p>Mossman was never notified as indorser of the note for $53,27, mentioned in the receipt, and at the trial, this note was produced by the plaintiffs, and filed in the case. On Jan. 22, 1845, at Bangor, John Lane tendered to John S. Jenness, one of the plaintiffs, whose residence was at Boston, but who was then at Bangor, a sum of money, said by him to be $68,43, in payment “of a note to Mr. Jenness,” for $53,27. Lane asked' Jenness, if he would count the money, and he replied that he would not, and, in the language of the witness, “ Jenness refused to receive the money, and. said he had no such note against Mr. Lane.” There was no other evidence as to what had been done with that note.</p> <p>The presiding Judge ruled, that upon the evidence, which was all on paper, a defence was not made out. A default was then entered by consent, to be taken off, if in the opinion of the Court the ruling was erroneous.</p> <p>1. The compromise of the note in suit, if the defendants were insolvent, by giving a negotiable security with a good and sufficient indorser, was a valid contract, binding on the plaintiffs, and founded on a good consideration. 11 East, 390 ; 8 Taunt. 277 ; 2 Maulé & S. 121 ; Boyd v. Hitchcock, 20 Johns. R. 76 ; Colburn v. Gould, 1 N. H. Rep. 279; Brooks v. White, 2 Mete. 283; Brown v. Stackpole, 9 N. H. Rep. 478.</p> <p>2. The defendants have the right to prove by parol testimony, that the compromise note was payable in Bangor. The presumption is, that the maker contemplated paying the note where it is dated, no other place being stated. 3 Kent, 96 ; 4 Johns. R. 288; 1 Peters, 89; 4 Law Reporter, 68.</p> <p>. 3. If the plaintiffs carried the compromise note out of the State, the defendants were not bound to pursue them there to tender the amount ; and in such case no tender is necessary. 5 Bac. Abr. 6 ; 1 Co. Lit. 210; 2 M. & S. 120; 6 Wharton, 331 ; Chitty on Con. 728, note ; 9 Wheat. 598; 6 Mete. 290; 8 N. H. Rep. 413.</p> <p>4. If so carried out of the State, the readiness to pay the note at Bangor, on the day of its maturity, is equivalent to a tender; and the tender of debt and interest to Jenness the first time he came into the State is equivalent to a tender on the day of its maturity, and an estoppel to any suit on the original note. Otis v. Barton, 10 N. H. Rep. 433 ; McKen-ny v. ffhipple, 21 Maine R. 98; 2 Saund. 48; Jacob’s Law Die. Bond ; 2 M. & S. 120; Brinley v. Tibbets, 7 Greenl. 70; Brown v. Stackpole, 9 N. H. Rep. 478; Willes, 108; 17 Maine R. 45 ; 18 Maine R. 55; Cro. Eliz. 755.</p> <p>5. The keeping of the compromise note, after arriving at maturity, and from that time to the time of trial, more than six years, without notifying the defendant of a repudiation or rescinding of the compromise contract, is presumptive evidence, either of a waiver as to the time of payment, or of a determination to abide still by the compromise contract. 6 Hammond, 171 ; Coolidge v. Brigham, 1 Mete. 547 ; Long on Sales, 239; Ayers v. Hewett, 19 Maine II. 281 ; Cush-man v. Marshall, 19 Maine R. 122 ; 5 S. & R. 323 ; Roberts v. Marston, 20 Maine R. 275 ; 4 B. & Cr. 513 ; 5 Johns. R. 71 ; 9 Mete. 42.</p> <p>6. The transferring of the compromise note at any time after maturity, is such a user of it, as to determine the election of the plaintiffs to look to that note for their pay. Harris v. Johnson, 3 Crunch, 318; 5 T. R, 513; Chase v. Bradley, 17 Maine R. 89.</p> <p>7. If the plaintiff did any act to prevent the defendants from paving the note at maturity, suefi prevention excuses payment till removed. Borden v. Borden, 5 Mass. R. 67 ; Williams v. Bank U. S. 2 Peters, 102.</p> <p>8. The plaintiffs, having taken a negotiable security in satisfaction of their debt, were bound to demand the same of the acceptor, or indorser, and to exhaust the remedies provided for them by the compromise note before they could be remitted to their original demand. 8 Taunt. 277 ; 1 Crunch, 181 ; 3 Johns. R. 230; 1 Cowen, 713; 23 Wend. 346 ; 7 N. H. Rep. 205; 11 East, 390; 9 N. H. Rep. 478.</p> <p>9. To avoid circuity of action the payment of the compromise note is a discharge from the original note. Trevet v. Aggas, Willes, 108.</p> <p>said that the most that could be made of the case for the defendant was an accord without satisfaction ; and that is no extinguishment of the original contract. Chitty on Con. 760; Com. Dig. Accord. B. 4; 2 M. & S. 121; 5 N. H. Rep. 136; 9 Coke, 79; 2 H. Bl. 317; 5 Pick. 44; 17 Mass. R. 583. And the payment should have been made at the time. Even the payment of a lesser sum after the time, would' not extinguish the original contract. 5 East, 230; 5 Mete. 283 ; 2 Johns. R. 448; 3 N. H. Rep. 518; 4 Greenl. 428.</p> <p>The payment of the fifty-three dollar note, at the time it became payable, was a condition precedent, and the contract must have been strictly performed, in order that jt should furnish any defence.</p> <p>As no place of payment was mentioned in the note, it was to be paid at the place of residence of the payee. 24 Pick. 168; 8 N. H. Rep. 413 ; 10 N. H. Rep. 433. - The tender, therefore, at Bangor, if it had been legally made and in due time, would not have aided the defendants.</p> <p>But there is no proof of any legal tender at any time or place. 5 N. H. Rep. 440.</p> <p>The note was qf no value whatever, after the time of payment had elapsed, and no payment, or offer of payment, had been made. It was soon enough to have delivered it when demanded, or to produce it at the trial. 8 Mete. 227.</p> <p>It is needless to inquire, what would have been the effect of negotiating the note, as it. was never negotiated.</p>

Writ of Entry, declaring upon a mortgage of land in Newfield. Nathaniel Stevens, the tenant, was admitted to have been once the owner of the demanded premises. Held: that the possession must be open and exclusive. Norcfoss v. Widgery, 2 Mass. R. 506; 2 Verm. R. 547. The case of Webster v. Maddox, 6 Greenl. 256, mainly relied upon for the tenant, differs from the present case in the most essential particular. There, Bean was never in possession for a moment.

At an adjournment of the November Term of the Supreme Judicial Court for the county of Cumberland, 1846. presented a petition for a mandamus to the county commissioners of the county of York, and moved for an order of notice thereon, returnable at the next April Term of this Court in the county of York.

<p>This case came before tbc Court upon the following statement of facts: —</p> <p>“ This was an action of replevin, originally commenced before a justice of the peace, to recover a heifer, as described in the writ, dated Sept. !, 1845. The defendant pleaded the general issue and brief statement, which may be referred tdi</p> <p>‘•'It was proved, that the plaintiff on the fourth day of December, 1844, loaned twenty dollars to Itcwell Marshall, who owned tho heifers, and that said Marshall gave to the plaintiff his note for the same, payable in one year with interest, and at the same time executed to the plaintiff the annexed mortgage deed of two yearling heifers, to secure the payment of said note, as specified in said mortgage, which was recorded by the town clerk of Shapleigh, where the parties lived, Dec. 5, 1844; and that said heifers were delivered to the plaintiff in said Marshall’s barn yard in presence of one of the witnesses to said mortgage deed, but were left in the possession of said Marshall, and continued in his possession until the 26th day of August, 1845, when the heifer replevied was attached by the defendant, as an officer, upon a writ in favor of B. F. Chadburn and Israel Chadburn, against said Marshall, for a debt due to them, upon which judgment and cxecation were afterwards duly recovered. At the time of said attachment said heifers were yoked, and said Marshall was using them to haul stones, and the officer removed the one he attached.</p> <p>“ If in the opinion of the Court the plaintiff could not maintain this action of replevin at the time it was commenced, he is to become nonsuit; otherwise judgment is to be rendered against the defendant.</p> <p>The following is a copy of the mortgage deed to which reference is made in the statement—</p> <p>, “ Know all men by these presents, that I Rowell Marshall, of Shapleigh, in the county of York, and State of Maine, yeoman, in consideration of twenty dollars, to me paid, by Nathaniel Ferguson, jr. of said Shapleigh, yeoman, the receipt whereof I do hereby acknowledge, do hereby give, grant, sell and convey unto him, the said Nathaniel Ferguson, the following persona] property, to wit: — two heifers, one year old last spring, one of which is of red color with two white stars on the forehead ; the other is red color with a brownish head. The aforesaid heifers are now on my farm in Shapleigh. And I hereby give the said Ferguson full power and authority to enter my premises, or elsewhere, and take possession of the same property, and make .sale thereof for the purpose of paying the note hereinafter mentioned, provided the same should not be paid at maturity. Provided, nevertheless, that if a certain note of even date, herewith given, and signed by me, the said Rowell Marshall, for the sum of twenty dollars, payable to the said Ferguson or order, in one year, with interest from this date, shall be paid and discharged in full, then this conveyance shall be void and of no effect; otherwise shall be and remain in full force and virtue. Witness my hand and seal, this fourth day of December, A. D. 1844.</p> <p>“ Rowell Marshall, [l. s.]</p> <p>“ Signed, sealed and delivered in presence of John F. Bod-well, Elisha Bod well, Daniel Morrison.”</p> <p>contended, that the suit was not prematurely brought.</p> <p>The right of possession follows the deed, unless there is a clear provision to the contrary. There is nothing in this bill of sale to take the case out of the general rule. The provision in the mortgage deed, that the plaintiff may take possession and sell the property, is a mere stipulation for the benefit of the mortgagee, and cannot impair his right to immediate possession. The officer has no right to remove the property because an equity of redemption remains in the mortgagor, without first paying or tendering the amount due on the mortgage. Paul v. Hayford, 22 Maine R. 234; Melody v. Chandler, 3 Fairf. 282; Pickard v. Low, 15 Maine R. 48.</p> <p>said that the plaintiff had no right to the possession of the property at the time this action of replevin was commenced ; and therefore the action cannot be maintained. 3 Greenl. 183 ; 3 Pick. 255 ; 15 Pick. 68; 15 Maine R. 48 and 373.</p> <p>By any fair construction of the language, the meaning is this. If the note is not paid at maturity, the mortgagee may then enter and take possession of the property and make sale thereof, and has no right to intermeddle until then. And the acts of the parties were in accordance with this view. 15 Maine R. 48 ; 2 N. H. Rep. 453 ; 7 Mete. 373.</p> <p>The plaintiff, by taking the deed, is bound by the recitals contained in it. 9 Mass. R. 482 ; 8 Pick. 392.</p>

<p>In trespass upon land, conveyed in trust, the trustees can maintain an action ; but if the cestui que trust, be in actual possession, he should be the plaintiff, though it is otherwise in ejectment.</p> <p>An action can be maintained by a corporation legally existing, for any invasion of their rights in real estate, in the same manner, that it could be done by an individual who should be the owner; but one who is neither trustee, or cestui que trust, cannot maintain an action in his own name for the use of one or the other.</p> <p>Under a deed in trust the legal estate is in the trustee; and if there be several trustees, it is not in the power of one or more to exclude from the possession of the land conveyed, another trustee. An attempt to do so ■ would be inconsistent with rights, which the law secures by such a deed. A lease given by a part of the trustees would confer no power superior to that possessed by the lessors, and possession taken under the lease could not in the least abridge the right of possession of other trustees ; the latter, although a minority, would be equally entitled to possession with those who might constitute the majority, without being guilty of a trespass.</p> <p>If a grant of land be made to certain individuals named, to bo by them held “ as one entire property, never to be divided or severed, for the use of the first baptist society in K. to be forever kept for the sole use and support of a minister of the baptist denomination and at the time there was a society by that name, usually attending worship at a particular place, but which had never been legally organized as a parish, or authorized to act as such; and a society by the same name, and claiming to be the same society, is afterwards incorporated under the Stat. 1821, c. 135 ; this society, so incorporated, is to be considered as a new society, and not the one intended by the grant, or entitled to the benefit thereof.</p>

<p>Where the condition of a bond was, that the obligor should annually deliver certain articles to such wife, as the obligee might afterwards marry, should she survive him; and after his marriage and decease there was a failure to deliver the articles; it was holden, that an action could be maintained upon the bond by an administrator of the obligee, to recover the damages incurred by such failure.</p> <p>And where the condition of the bond, in reference to any person who might be married to the obligee and become his widow, was, that “ she shall enjoy one fifth part of the produce (of the farm conveyed to the defendant,) • delivered to her free from all expense on her part, also the privilege of keeping one cow and one pair of sheep and furnishing her with the back room and bedroom adjoining, with the use of the kitchen, together with a sufficient quantity of firewood cut in suitable lengths for her fire, sufficient for her use during her natural life,” it was holden, that she was not entitled to hay or firewood to be by her carried away from the farm and disposed of at her pleasure.</p>

<p>Executors by tile common law, are authorized to discharge or release at pleasure, dioses in action of their testator, although such release may in certain cases be evidence of assets in their hands.</p> <p>The Rev. Slat. (c. 106, § "33,) which provides, that an executor or administrator may compound with and discharge a debtor, unable to pay all his debts, with the approbation of the Judge of Probate, on receiving a lair proportion of the debt, does not restrict the power of executors and administrators. It merely affords them protection against being called upon to account for more than they have received, when they have acted with the approbation of the Judge of Probate.</p> <p>In giving a construction to an instrument in writing, the intention of the parties, to be collected from the whole instrument, is to be carried into effect, although a literal construction of a single clause, considered without reference to the others, would lead to a different result.</p> <p>When a levy is made upon land previously attached, the estate is appraised at its value at the time of the levy, and the statute purchaser pays no more . for it, although the title acquired has relation to the time of the attachment.</p> <p>If a debtor, after an attachment, and before the levy of the execution thereon, makes a conveyance of the land, honafula, and for a valuable consideration ; and after such couveyanco and before the levy, a third person cuts timber trees, as a trespasser upon the land, and converts the same to his own use, and settles therefor with the grantee of the land, and pays him the value of the timber; the grantee does not thereby become chargeable as the trustee of the debtor, in a process commenced by the creditor, after the levy, wherein the grantee is summoned as the trustee of the debtor.</p>

Trespass quare clausura. The case came before the Court upon an agreed statement of facts, wherein it was agreed, that either party should put into the case any records of the proprietors of New Pennycook, now Rumford, in which the land lies. The facts appear at the commencement of the opinion of the Court. The return signed by the person to whom a warrant to call a meeting was directed, to which objection was made, was in these words: — “Rumford, January • 26, 1828.

<p>This case was tried before Tenney J. and came before the law Court on the following report: —</p> <p>This was a writ of entry in which demandants demand against the defendant the possession of a certain tract of land in Fryoburg, as set forth in the writ, which may be referred to. The demandants claim title under an extent of execution duly made upon the demanded premises in favor of their de-visor. July 20, 1839, which may be referred to.</p> <p>The tenant, to sustain his title, offered a deed from Isaiah Warren to himself, dated July 27, 1837, of one of the lots described, in which is the one demanded in this action, which deeds may be referred to. The demandants objected to this deed as void on the ground of fraud ; and to prove the fraud, offered the record of a judgment in their favor against the defendant, recovered at the S. J. Court for this county, holdon at Paris on the 2d Tuesday of October, A. D. 1845, for possession of another parcel of land described in said deed, as conclusive evidence, it being admitted by the tenant, that on the trial of that action, the verdict of the jury was returned in favor of the demandants, on the ground that the deed was fraudulent as to the premises demanded in said writ. The tenant contended, that this verdict was not evidence that his deed was fraudulent, except as to the particular tract of land described in that writ, and that in the present action the question, whether the deed „is fraudulent as to the demanded premises, is open for trial, in the same way and manner, it would have been, if it had been described in a separate deed.</p> <p>For the purpose of settling this question, the presiding Judge ruled in favor of the demandants; whereupon the tenant consented to a default; which is to be set aside and the cause stand for trial, if this ruling was incorrect, otherwise judgment is to be rendered on the default.</p> <p>said that the case presented but one question : — Is the record of the former judgment conclusive evidence of fraud ? They contended that it was not. If the land had been conveyed by a different deed, it could not be supposed by any one, that' the record was conclusive evidence, or indeed any evidence as to fraud in the other.</p> <p>The deed was not fraudulent in every thing, but certainly good for many purposes. The record was evidence, as to the land in question, at that trial, only so far as that the deed was constructively fraudulent as against creditors. The land now in question was not then in controversy, and there was no judicial inquiry touching it. If both the tracts described in the deed had been included in the former writ, the jury might have found the conveyance fraudulent as to one tract, and good as to the other. The defendant might have taken a conveyance for sufficient consideration as to one, when as to the other it was merely voluntary. In order that the record should be a bar, the judgment must have been upon the same subject matter, and what was directly in issue. Stark. Ev. Part 2, 196; 1 Greenl. Ev. § 528, 532, 565; Jones v. Fales, 4 Mass. R. 255 ; Bridge v. Austin, ib. 117 ; 2 Pick. 20; 8 Pick. 350; 15 Pick. 416; 2 Mete. 368; 15 Pick. 276 ; 17 Pick. 13.</p> <p>The cause of action in the present case was not in any manner brought into controversy in the former suit; and the record of that can in no w'ay prevent a trial upon the merits in this. 17 Mass. R. 237 ; 14 Pick. 55; Rose, on Ev. 101 ; Stark. Ev. 2d part, 190, 198,201, 202 ; 3 Greenl. 169 ; Steph. Nisi Prius, 1664.</p> <p>said that he should admit, that it was necessary that the judgment in the former case must be upon the same subject matter as in this. The only difficulty was in the application.</p> <p>lie contended, that the record was upon the same subject matter in both cases, to wit: — the validity of the levy and of the deed from Warren to the tenant. The former was good ; the latter bad. It is impossible that the same deed, can be fraudulent and void in part and good in part; that the tenant should fail of holding one tract, because the deed was fraudulent, and at the same time under the same deed, hold the other, on the ground, that the same deed was good. 2 Hen. & Mumf. 55 ; 4 Cowen, 559; 8 Wend. 9; 4 Rawle, 273.</p> <p>The conveyance, being fraudulent in part, is so in toio. 3 Cowen, 120; 5 Cowen, 447; Harris v. Sumner, 2 Pick. 137; 6 Hill, 438; 7 Mete. 520; Am. Jurist, Oct. 1839, page 22; 8 Mass. R. 51; 8 Johns. R. 213; 4 Yerg. 164 & 415. A deed can no more be fraudulent in part, than illegal in part.</p>

This case came before the Court upon the following report of the trial before Shepley J.: — In this action the defendants moved, that the action be dismissed because of the defectiveness of the records in the Court below. It appeared that the docket entry of the District Court fdr the August Term, 1840, is as follows, viz: — “ No. 151. George Gault v. Ambrose Hall & ai.” “Demurred.