Volume 27 — Maine Reports

Assumpsit by the plaintiff as indorsee against the defendant as maker of a note, of which a copy follows : — “ $40,00. Bangor, Oct. 7, 1837. For value received of 11. D. Hill, I promise to pay him or order, forty dollars on demand and interest. A. W. IXasey.” There was also a count in the writ, which was dated Aug. 3, 1843, for money had and received.

This was a writ of entry wherein the demandants, in right J ’ D 0f the wife, claim an undivided seventh part of certain lands in Woolwich, as one of the heirs at law of Peleg Tallman, deceased.

<p>Where a note then payable, having thereon a blank indorsement by the payee, was received of him by the holder, with the understanding, of which the indorser was perfectly conusant, that demand on the maker and notice to the indorser were not intended to form a condition upon which alone the latter should become liable, — it was held, that demand and notice were thereby waived by the indorser.</p> <p>Evidence of the declarations of the indorser as to the contract, prior to the indorsement of the note and in reference to it, tending to show the terms upon which the note was received, and especially when connected with subsequent conduct and declarations having the same tendency, is admissible.</p>

The following is a copy of the case, on the exceptions and motion for new trial, because the verdict was against the evidence. “ This was an action on the case charging defendant with conspiring with one Joel How, Jr. a deputy sheriff, and procuring said How to make a false return of an attachment of certain real estate. The writ was dated July 5, 1845. “ Plaintiff called certain witnesses who testified as follows: — “ Joel How, Jr. I was deputy sheriff in March, 1841.

This was an action on the case, against the defendant ., , _ , . aiding one Alexander Earstow to secrete and secure certain . . personal property, with a view to defeat and delay his creditors, After the introduction of other evidence the plaintiff called Barstow as a witness.

This case came before the Court upon the following excep-lions to the ruling of Whitman C. J. presiding at the trial.

<p>An action upon a probate bond against an administrator, brought by the heirs at law for their own benefit, in the name of the judge of probate, where there is no allegation in the writ that special leave for bringing the suit was given by the judge, cannot be maintained, under Rev. Stat. c. 113, without proof of a decree ascertaining the amount due to such heirs.</p> <p>But an action on such bond may be maintained in the name of the judge of probate by heirs at law, for the general benefit of the estate, in certain eases, such as where the administrator returns no inventory, or settles no account, or refuses to appear when cited by the probate court to settle an account, if it be alleged in the writ and proved, that it was “ commenced by the express authority of the judge of probate.”</p> <p>The judge of probate cannot, however, it would seem, maintain a suit upon such bond in his own name alone, and on his own mere motion ; but can only authorize the bringing of a suit, in cases where his consent is necessary.</p>

The appellee, Henry Tallman, presented his second account as administrator of the estate of Horatio Smith, deceased, to the judge of probate for allowance. The judge of probate made the following decree relative thereto. “ Lincoln, ss.

This was an action of assumpsit, originally brought before the municipal court of Bath. The first count in the declaration was on an account annexed to the writ, containing this item only: — “ To rent of the portion of the house formerly owned by William Pettengill, for the year 1842, set off to me on execution, $18,63.” There was a second count, for money had and received; and a third, for use and occupation of the land set off to him on execution, against H. G. Allen.

Exceptions from the Middle District Court, Redington J. presiding. Debt on a poor debtor’s bond. It was admitted at the trial, that Barker, the debtor, duly cited the creditor before two justices of the peace and quorum, before whom he made a disclosure in writing; and that the oath prescribed in the statute was administered* to the debtor by the justices.

<p>If a conveyance of an interest in land be made in the common form of a quitclaim deed, containing this stipulation, —“ provided said grantee shall pay said grantor or his assigns, twenty-two dollars annually from this date on demand”— until the happening of a certain event; and the grantee holds under the deed, but fails to make the annual payments when demanded ; the grantor may sustain an action of assumpsit against the grantee, to recover the money.</p>

This was an appeal from a decree of the judge of probate for the county of Lincoln, approving an instrument as the last will of Benjamin Riggs, deceased.

Debt by the plaintiffs, as a fish committee of the town of Bristol, to recover the penalty provided in the seventh section of an act to regulate the alewive fishery in Bristol, passed March 4, 1826. The penalty was alleged to have been incurred by the acts of the defendant on May 10, 1845.

At the May Term in this county, 1847, the counsel for the respective parties agreed to argue this case in writing.

<p>Tlie stat. 1844, c. 117, “ to secure to married women their rights in property,” is prospective merely. The interest, therefore, which the husband acquired in the real estate of the wife, by a marriage prior to that act, is not affected by it.</p> <p>Where the officer’s return of a levy on land, states, that all three of the appraisers were duly selected and sworn, and “ were all present, and viewed the premises, and made their several estimates of the value,” and’ that two of them signed the certificate, “ the other declining to sign the same,” it is not necessary, that it should state the cause of the refusal of such appraiser to affix his signature.</p>

This case came before the Court on the following report of the trial before Whitman C. J. This was an action of assumpsit against the defendants, as common carriers.

This was an action of assumpsit, to recover for goods sold and delivered to Nancy T. Hussey, while she was a feme sole. The sale and delivery were proved, at the trial before Shepley J. It appeared that she was married to the other defendant, Starrett, on Nov. 15, 1843.

At the trial before Whitman C. J. the parties, respectively, introduced their evidence, which was reported in full, and covered more than twenty pages; and they then agreed, that the cause should be taken from the jury; and that the Court should make such inferences from the evidence, as a jury might do, and upon the whole case, enter such judgment as justice and law might require, upon nonsuit or default.

<p>Tlie report of a case by a Judge of tlie District Court, “ presenting the legal points for decision” of the Supreme Judicial Court, under stat. 1845, c. 172, must be drawn up with the consent of the parties thereto. The facts stated in the report become by agreement the facts upon which the case is to be decided, and no other facts can be disclosed to this Court. Even the writ and pleadings, unless made a part of the case, cannot be examined for the purpose of influencing the Court.</p> <p>To enable the plaintiff to maintain an action upon a promissory note, made payable at a particular time and place, it is not necessary to aver and prove its presentment at the time and place named therein. If the maker was there, prepared to pay it, that is matter of defence to be pleaded and established by him.</p> <p>Although the maker was at the place of payment, at the time named, prepared to make payment of the note, and the holder was not there to receive the money, yet if he subsequently demand payment there, and cannot obtain it, he may maintain an action against the maker to recover the amount.</p> <p>The pica, when such defence is made, to be a good one, must state, that the maker was ready to pay the money at the time and place named; that he has ever since been ready there to pay the same ; and that he brings the money into Court for the plaintiff. The facts alleged may be put in issue, and must then bo established by proof, or the defence must fail.</p>

The parties agreed to submit this action for the decision of the Court upon the following statement of facts. This is an action on a poor debtor’s bond in common form. On the 26th day of September, 1846, said Holmes disclosed at Portland before J. W. M'unger, chosen by the debtor, and Charles Harding, chosen by R. A. Bird, deputy sheriff of Cumberland county. The creditor did not appear.

<p>Where there are several particulars in the description of the premises in a deed, and it is found that two of these particulars wholly fail, and cannot apply to any thing; still the land intended to be conveyed, will pass by such deed, if there be enough in the other parts of the description to identify the land.</p> <p>If two grantors malte a joint deed of a certain tract of land, the land may pass by such deed, if owned by either of the grantors in severalty, when such can be seen to have been the intention of the parties.</p> <p>'Where a deed was made by W. L. W. and G. W. P. Jr., to V. & S. with this description of the premises,— “ a lot of land, situate in said A. conveyed to us by G. W. P. by deed dated May 25, 1836, and recorded book 92, page 51,” — and where the deed recorded on the book and page named, was from G. W. P. Sen. to G. W. P. Jr., particularly describing a lot of land and bearing the date of May 25, 1835, and there was no other deed on record from G. W. P. Sen. to G. W. P. Jr., or to W. & P. and no deed recorded between any of those parties dated May 25, 1836 it was kolden, that the land described in the deed recorded on “ book 92, page 51,” passed by the deed of W. &. P. to V. & S.</p>

Exceptions from the Middle District Court, Remington J. presiding. “ This was an action on a poor debtor’s bond in common form, dated Oct. 10, 1844. The writ was dated May 23, 1845. The general issue was pleaded with a brief statement of performance. “ The execution of the bond was admitted, and the defendants then introduced the certificate of two justices of the peace and quorum in due form, which may be referred to.

Repoht from the Middle District Court, RedingtoN J. presiding. “ Debt on recognizance.

Exceptions from the district court, Redington J. presiding. “ This is an action of trover, for a promissory note, made by one David Parker and payable to one Betsey Parker. The verdict was for the plaintiff. The writ, together with certain questions propounded by the Court and answered by the jury, and also the note aforesaid, are to be copied and made a part of this case.

Exceptions from the middle district court, Redington J. presiding. Trespass for taking and carrying away a grey mare, the property of the plaintiff. The plaintiff introduced one Robert Foord, to prove the taking and carrying away, and also that said grey mare was the property of the plaintiff, at the time of the taking, &c. by said Hains.

The parties agreed upon a statement of facts. “ This is an action of dower, and it is agreed, that the demand-ant was lawfully married… Held: that at common law, a dissolution of the marriage, as well as the death of the husband, had that effect. This brings us to the question, whether the Legislature has extended this incumbrance, by multiplying or creating new contingencies, upon the happening of which, the right of this demandant to dower in these premises is to attach ?

<p>Where the plaintiff by operation of law is compelled to pay a debt, which in equity and good conscience the defendant should have kept from being so claimed and paid, an action may be maintained to recover of the defendant tile amount so paid.</p> <p>If a note be indorsed, after it has become overdue, thus — “ indorser not holden, D. S.” the indorser is nevertheless, liable therefor, if a payment has been made upon the note, or a set-off can be claimed, when the note exhibits no indication of them, and the indorser leaves the indorsee in entire ignorance of any thing of the kind.</p>

<p>It is not contemplated in tiie constitution or laws, that a party can save the expense of legal counsel and assistance, go on as it were blindfold, and if he becomes the victim of his own rashness and indiscretion, make that rashness and indiscretion the basis of a claim to he restored to his original condition in the suit, especially when he produces no evidence, that he suffered any loss on the merits.</p>

<p>Where the plaintiff, “being about to set up a,steam engine and planing machine to be connected therewith, agreed with the defendant, being a house carpenter, to take charge of and oversee the work, which was making drums, machinery and other geering necessary to connect the same, and to receive one dollar and fifty cents per day for his services; and where it was proved, that he so worked there, overseeing the work and directing until he pronounced the machinery to be in running order, and then left, — it was holden, that the defendant was not thereby bound by a special agreement to do the work in any manner; and that the defendant was entitled to be paid for his own labor.</p>

The first named of these four cases was a bill in equity, brought by Smith against Kelley. The facts bearing on the questions decided in the equity suit are found in the opinion of the Court, and in the agreed statement in the other cases. . . In the three last named actions, the parties agreed upon the following statement of facts.

<p>' 'The conveyance of land, subject to a mortgage, made by a former owner on condition that certain personal services should be performed by the mortgagor, is a sufficient consideration for a note given for the purchase money.</p> <p>Damages may be recovered, for non-performance of personal services, as well as for the neglect of performance of services to be performed by others.</p> <p>To make a statement of what was contained, in a deed of conveyance, and express an opinion of its effect, furnishes no proof that the person so making them, .knowingly made such representations, as would make him liable to an action.</p>

ExceptioNS from the district court, Redington J. presiding. A copy follows: — “ This is an action of the case, upon the 49 sect, of 148 chap, of Revised Statutes, against the defendant for knowingly aiding one John Ball, a debtor of the plaintiff’, in a fraudulent transfer of his property.

ExceptioNS by the defendant from the district court, Goodenow J. presiding. The action was for a malicious prosecution. The case will be sufficiently understood from the opinion in this Court, the ruling of the Judge in the district court, and requests for instruction by defendant’s counsel.

Trover for sundry articles of household furniture, &c., alleged to have been converted by the defendant to his own use. ^ . ** The writ was dated Nov. 24, 1845.

<p>In trespass guare clausum, where the plaintiff produces a deed from the county treasurer, purporting to convey the land for the payment of taxes assessed thereon, a mere stranger, without semblance of title, cannot object, under the general issue, that such treasurer had not observed the rules of law, in making the sale.</p> <p>But if the defendant produces a prima facie title to the land, the plaintiff, to support his tax title, must show that the provisions of law, authorizing such sale, have been strictly complied with.</p> <p>The county treasurer, in making sale of a township of unincorporated land, to pay the taxes assessed thereon, by the county commissioners, for the purpose of making a road through the same, cannot exempt any portion of the township, except the reserved public lots, from its liability for the tax, unless owned by individuals who have paid their proportions of the tax; and regularly it should appear, in order to authorize a sale of the residue, by the recitals in the deed, who had so paid previously to the sale, and the amount paid by each, and the quantity of land on which each payment had been made.</p> <p>Where a deed of a township of land has been made, and there are excepted tracts therein amounting to half the whole township, it is incumbent on the grantee, claiming title to a particular lot under such deed, to show that such lot is not included in the excepted tracts.</p>

<p>Where the principal debtor in a trustee process, had purchased land and given back to his grantor, a mortgage to secure his notes for the consideration, and then conveyed one half of the same, by deed of warranty, to the person summoned as trustee, and received the consideration therefor ; and afterwards, the notes secured by the mortgage, remaining wholly unpaid, the principal debtor conveyed the other half of the land to the supposed trustee, who contracted with his grantor, as the consideration for this conveyance, to pay the notes secured by the mortgage, being then to the full amount of the value of the land, — but at the time of the service of the trustee process, no payment had been made, of any part of the notes se-seeured by the mortgage, either by the supposed trustee or by the debtor ; it was holden, that the supposed trustee must be discharged.</p>

<p>By the stat. 1829, c. 431, “ the estate, right, title and interest which any person has by virtue of a bond or contract in writing, to a conveyance of real estate upon condition to be by him performed,” is liable to be attached and held after as well as before the condition has been performed, where no deed was given prior to the attachment.</p> <p>In making sale of such interest on execution it is not necessary for the officer to return, that he had given a deed to the vendee under his sale. It is sufficient, that it appears he had done so by the production of the deed itself.</p> <p>Amendments of his return of a sale of such estate, right, &c. on execution, may be made by an officer, by leave of court, no rights of third persons intervening, if before they were made the party, on looking at the return as it was, could not have misunderstood, that the proceedings by the officer had been substantially what the amended return shows them to have been.</p> <p>No precise form of words is necessary in a notice to account, &c. It is enough if it be such, that it cannot mislead the party, or leave him in any doubt of the object of it.</p>

<p>A partial failure of consideration for a note, given in payment for land sold, not arising out of a failure of title, but out of fraudulent misrepresentations respecting the quantity of timber trees then upon it, may be given in evidence in defence in a suit upon such note, while it remains in the hands of the seller, or in the hands of one having no superior rights.</p> <p>And if the purchaser makes a contract to sell a portion of the land to another, and gives to the seller in part payment, a note, signed by such other as principal, and the purchaser as surety, this does not affect the relations between the seller and purchaser, nor take away the right of the latter to set up fraud in the contract, as a defence.</p> <p>The law does not make the vendor responsible in damages, for every unauthorized, erroneous or false representation made to the vendee, although it may have been injurious. To make the party liable, the representation must have been false, have been fraudulently made, and have occasioned damage.</p> <p>And where one has made a representation positively, or professing to speak as of his own knowledge without having any knowledge on the subject, the intentional falsehood is disclosed, and the intention to deceive is also inferred.</p> <p>An agreement, containing a guaranty, that there is a certain quantity of timber upon a tract of land, does not necessarily include the idea or authorize the inference, that the person making it, knows the fact to be, as the guaranty stipulates, that it shall be, for the foundation upon which business is to be transacted.</p> <p>A deed of a grantee of the State, cannot be considered as belonging to the archives of the State, and it cannot be proved by a copy made by the Land Agent.</p> <p>Where a paper belongs to the archives of the State, proof of its contents may be made by a duly authenticated copy.</p> <p>Letters addressed to a public officer in his official capacity, when received, become public documents and may be proved in like manner. But extracts or portions of them cannot be received.</p> <p>Where letters have been written by the agents of the seller, and their contents made known to the purchaser as an inducement to make the purchase, the original letters only can be produced in evidence, without proof that they have been lost.</p> <p>A copy of the decree of the Circuit Court of the United States, although not made in a case between the parties, is the only legal testimony to prove the facts stated in the decree.</p> <p>The representations made by the agent of the plaintiff to the defendant may properly be given in evidence on the question of fraud. But the inducements which operated on the mind of the agent are not admissible.</p> <p>When parol proof of admissions, made in conversations or declarations, is introduced, it is limited to what was said or done at the same time, relative to the same subject.</p> <p>When proof is introduced respecting admissions made in and proved by bills and answers in chancery, letters and other written documents, the whole matter contained in such bill, answer, letter or other written document becomes testimony in the case, for a part cannot be received and a part excluded.</p> <p>Inquisitions, examinations, depositions, affidavits and other written papers, when they have become proofs of its proceedings, and are found remaining on the files of a judicial court, are judical documents.</p> <p>Where a deposition of a party to the suit, taken to be used in another court in a case between other parties, is offered in evidence in this Court by the opposing party, the impression is, that the whole deposition becomes evidence in the case.</p>

<p>Where an estate is devised on condition of, or subject to, the payment of a sum of money, or where the intention of the testator to make an estate, specifically devised, the fund for the payment of a legacy is clearly exhibited, such legacy is a charge upon the estate; and a court of equity may decree, that the person in whom the estate is vested shall execute the trust.</p>

This case came before the Court on the following statement of facts: — “ Writ of entry dated May 22, A. D. 1844, to recover possession of a tract of land named in the writ, being one undivided half part of No. 33 and 34, on Rufus Gilmore’s plan of the northwest of Bangor. “ Demandanfs title. — John C. Dexter and wife, conveyed said lots No. 33 and 34, to Samuel Smith of Bangor, by deed of warranty, dated March 21st, 1835, recorded April 7th, 1835, in the Penobscot registry.

Action of the case against Wilkins, as former sheriff of the county, for the default of Fowles, his deputy, in not keeping personal property, attached on a writ in favor of the plaintiffs against Barzillai Brown, so as to be taken on execution. On July 9, 1836, Fowles returned on the writ an attachment of one hundred thousand feet of pine boards.

The action was brought to recover the expenses incurred in the support of one Jones, alleged to have had a legal settlement in Brunswick. This case came before the Court on a motion to set aside the verdict, because it was against the evidence given at the trial, and on another motion, subsequently filed, to set aside the verdict on account of the discovery of new and material evidence first known to the defendants since the trial.

<p>Where a lot of unimproved land is taxed as the “ real estate of a non-resident proprietor whose name is unknown,” described in the assessment only as a certain lot on a certain plan of lots in the town, and is advertised and sold as such, for the purpose of obtaining payment of the tax, when in fact, at the time of the assessment and long before and afterwards, the owner of the land, deriving his title under a deed of the lot duly recorded, resided in the same town wherein the lot of land is situated — such sale is illegal and void, although the collector conformed in all respects in making the sale to the provisions of law.</p>

Writ oe entry, demanding two thirds of a lot of land,Ton which were standing a house and a stable, in Oldtown. The material facts appear in the opinion of the Court.

Assumpsit on two promissory notes. The case was submitted on a statement of facts, as it was ■termed, setting out the testimony of witnesses, and the introduction of depositions, at a trial in the district court; and ■concluding thus: — “ The foregoing evidence being out, the case by consent was taken from the jury and submitted to the Court on the ■question, whether the facts proved constituted a good defence in law, each party reserving the right to appeal.

This is an action of assumpsit for money paid on a judgment against the plaintiff, in favor of R. C. Johnson, founded on a note signed by the defendant, dated Sept. 8, 1835, payable to William Bailey or order, and by him indorsed, in two years from date, with annual interest, and indorsed by the plaintiff; writ is dated Sept. 3,1843.

<p>A party can have no right to select a portipn of the evidence introduced, and request instructions upon the effect it should or might have upon the minds of jurors, when examined separately from the other evidence applicable to the same point.</p> <p>The rule of law is well established, that a payment made in money of a part does-not operate to extinguish the whole debt, although it he received as a payment in full. There must be some consideration for the relinquishment of the portion not paid, or the agreement to receive a part payment in full will be without consideration and void.</p> <p>When a case is brought before the Court by bill of exceptions, no question which is not presented by the exceptions, is open for consideration. The legal conclusion is, that all other necessary instructions were correctly given.</p> <p>The Court cannot imply a promise, so as to take the contract out of the operation of the statute of limitations, as an inference of law, from the payment of a part of the debt; but the evidence should be submitted by the Court to the jury, with proper instructions, to enable them to do it.</p>

The action was dower. The demandant claimed dower in the premises as widow of Zadock French, deceased, alleged to be seized thereof during the coverture.

Trover, to recover the value _ of certain furniture, books, &c., particularly described. The articles were originally the property of Preston, one of the defendants.

This was a petition for partition. At the trial before Shepley J. the petitioners read a deed of release to themselves from Stephen Goodhue, dated Aug. 29, 1844, acknowledged same day, and recorded Aug. 29, 1844, conveying all interest in the premises.

<p>In an action upon a poor debtor’s bond, wherein it appeared, that the principal debtor disclosed before the justices, that he had, at the examination* in his possession, “ a five dollar bank bill and a dollar in specie,” and that' before the oath was administered, he “ paid over three dollars to his attor- ■ noy, and three dollars to the justices, as their fees, which they exacted before allowing the oath;” it was holden, that under such circumstances the justices had no authority to administer the oath to the debtor, and that their certificate of having done so furnished no defence to the suit upon the-bond.</p>

This was an action of trespass on the case against Burton,. Rice, Adams and Hardy. Whitman C. J. presiding at the trial, being of opinion,, that the plaintiff could not in law support this action, if the facts alleged were proved, directed a nonsuit. The plaintiff filed exceptions. The facts are sufficiently stated at the commencement of the opinion of the Court.

The present defendants, Warren and Brown, brought a suit against Wilkins, the present plaintiff, which was entered in this Court at the October Term, 1839, having been previously commenced in the court of common pleas, and an appeal entered. It was tried at the October Term, 1840, and a verdict returned in favor of the then defendant. Certain questions of law arose upon a report of the case by the presiding Judge.

This case came before the Court on the following statement oí lacts. Debt on a judgment. Plea, bankruptcy of the defendant, It was agreed by the parties, that on Nov. 30, 1841, the defendant gave the plaintiff a note for $198,39, payable to the plaintiff or order in six months.

<p>In a replevin suit, if the name of the plaintilf be put upon the bond by one without any authority therefor, from the plaintiif, it is not such a bond as the statute requires, although signed by two sureties.</p> <p>An officer has no authority to serve a writ of replevin, without first taking such bond as the law requires.</p> <p>Where a deputy sheriff took property on a replevin writ, without first taking such bond as the statute requires, and the suit was entered in Court, and judgment rendered in favor of the defendant for a return of the property, with damages and costs; and an execution was issued on the judgment, and a return made thereon by a proper oflicer, that he could find neither the property replevied, nor property, nor body of the execution debtor; and the judgment creditor brought an action of the case against the sheriff' for the default of the deputy, alleging in one count, that the service of the replevin writ was made without first having taken to the defendant in that, suit “ a bond with sufficient sureties,” and in another eount alleging “the default to he in not returning said replevin writ and bond;” it was holdtm, that the action was barred by the statute of limitations of 1821, c. 52, § 16, unless commenced within four years of the time of the alleged service.</p>

The action was covenant broken on the covenant against incumbrances in the deed of the defendant to the plaintiff, dated September 20, 1839, and recorded September 21, 1839.

Replevin for a quantity of hay. With the general issue, non cepit, the defendant filed the following brief statement: — And for brief statement the defendant says, that he did not take said property as alleged, that at the time said property was replevied he did not have the same in his possession, or claim to own the same, but had previously parted with all his right, title and interest therein. —And further, that at the time said plaintiffs sued out their writ, they had no…

This case came before this Court on the following excep-lions: — “ This was an action of debt on a poor debtor bond, taken on an execution according to chap. 148 of Rev. Stat., dated Feb. 28, 1844, for the penal sum of $69,44. “ The due execution of said bond was admitted. “ The defendants introduced in defence the certificate, of J. H. Hilliard and G. P. Sewall, two justices of the peace and quorum for said county, of the administration of the poor debtor oath to said…

<p>Where a ship is owned by two persons in equal shares, and one of them without any authority from the other, and without his knowledge or consent, repairs the vessel in a home port, he cannot recover of the other owner, any portion of the money expended for such repairs.</p>

A libel, of which a copy follows, was filed at the Septem-her Term, 1846, of the Eastern District Court: — “ To the Honorable the District Court for the Eastern District, next to be holden at Machias within and for the county of Washington, on the third Tuesday of September, ■ A. D-1846: — “ The libel and complaint of Henry Marsh, of St. Stephen,, New Brunswick, lumberman, informs and gives the Honorable Court to understand that the proponent at a certain place…

This was an action of assumpsit to recover the amount of a promissory note for three hundred and fifty dollars, dated Feb. 11, 1845, given by defendant to plaintiff, payable on the first day of June, then next, with interest. The general issue was pleaded and joined. Plaintiff read in evidence, the depositions of William Boardman, Robert M. Todd, and Salem Laflin and the note of hand declared on.

This case came before this Court, on the following exceptions to the decisions of AlleN, Eastern District Judge. This was an action originally brought before a justice of the peace, and tried, on an appeal in the district court, on an account annexed to plaintiff’s writ, of which the following is a copy. “ Inhabitants of town of East Machias. “ To inhabitants of town of Brewer, Dr. “ 1843.

Writ of dower. The demandant, at the trial before Shefley J., proved the marriage, death of the husband, seizin of the husband during the coverture, and demand that dower should be assigned. The tenant alleged, in his pleas, that the demandant had released all claim to dower in the premises, in a mortgage deed with Robert Sellars, her late husband, to one Wardwell, and that the mortgage had been assigned to the tenant.

The facts in this case, so far as they relate to the questions argued or decided, are found at the commencement of the opinion of the Court. Held: and especially the votes relating to the land in question, was out of the jurisdiction of the State. The charter introduced and relied upon, is a grant from the sovereignty of Maine. The corporators must in the organization and subsequent conduct of the corporation, conform to the laws of this State.

Covenant broken. At the trial before Tenney J. the parties respectively introduced their evidence, which was all reported ; and then agreed, that if the whole Court should be of opinion, that upon the evidence, the action was maintainable, judgment was to be rendered for the plaintiff, and the Court were to determine the amount of damages. And that if the action was not maintainable, a nonsuit was to be entered.

<p>Where there is no agreement, in the mortgage, that the mortgagee shall not-enter into possession of the premises before a breach of the condition, the mortgagee may maintain an action to recover the possession, without proof' that the'condition has been broken.</p> <p>Deeds which have been executed between the same parties at the same time, cannot be construed together, so that one should be limited by the provisions contained in the other, unless they relate to the same subject matter.</p> <p>Thus, where the only condition of a mortgage was, that the mortgagor should, “ support the said Allen (the mortgagee) with suitable meat and drink, and1 all necessaries, and pay all doctor’s bills for the said Allen,” and where an. agreement, under seal, was made between the parties at the same time, containing stipulations on the part of each, whereby it appeared, that it was. necessary that the mortgagee should reside upon the premises, in order to-be entitled to her support; it was held, that the condition of the mortgage could not be limited by the terms of the agreement.</p>

The facts appear in the opinion of the Court. contended that the review might well be granted on the petition of any one interested in the estate, and cited Rev. Stat. c. 123, 1. And it is the duty of the guardian of minors to attend to this petition in their behalf. St. c. 121, $ 10.

<p>The liability of the principal in a promissory note, to reimburse his surety for any payment made by the latter, in consequence of his so becoming surety, commences at the time the note is delivered to the payee ; and whenever payment may be made by the surety, he is to be considered as a creditor of his principal, from the time the note was made and delivered.</p> <p>A court of equity will assist a judgment creditor to discover and reach the property of his debtor, fraudulently transferred, although not liable to be attached upon a writ, or seised on execution, when the .creditor has exhausted his remedy at law, without having obtained payment of his debt.</p> <p>A judgment is evidence of the amount of indebtedness between the parties to it; but is not binding as to third persons, not parties or privies thereto.</p> <p>If one has received a conveyance of an estate under such circumstances as will render the conveyance fraudulent as to creditors, still the grantee is not bound to restore this property to a creditor, to an amount beyond the sum justly due to him. And if a creditor takes judgment for double the amount justly due to him, a court of equity will not interfere to assist him in obtaining satisfaction of such judgment.</p> <p>Nor will the Court interfere where land has been fraudulently conveyed, if the grantee has received no benefit therefrom, and the title is still a matter of controversy, and of litigation between such grantee and a claimant of the property.</p>

This case came before the Court on a general demurrer to the following plea. “ And now the said defendants come and defend the &c., and for plea, say that they ought not to be held further to answer to the plaintiffs’ writ, because, he says, that the said plaintiff is not an inhabitant of this State, but is an inhabitant of the Commonwealth of Massachusetts, and because, he says, that said writ was not before entry in Court, nor now is indorsed by any sufficient person, who…

<p>If the record shows, that the two justices of the peace and of the quorum, selected by the parties iu manner provided by law to take the disclosure of a debtor, “ are unable to agree as to the sufficiency and legality of said notification,” and “do not agree upon the selection of the third justice,” and thereupon an officer makes the selection ; this is sufficient to justify the selection of the third justice by the officer.</p> <p>When the third justice has once been legally called in to act with the others, by reason of their disagreement, he should act until the final decision is made.</p> <p>Ln a case coming into this Court by exceptions from the district court, no point can be raised except such as were taken in the district court.</p>

This was a writ of entry demanding two tracts of land. The controversy related exclusively to one of them. The demandant claimed under a levy.

<p>The stat. of 3847, c. 13, entitled “ An act additional to chapter eighty-nine of the Revised Statutes, respecting divorce,” does not repeal the laws then in force on that subject; but merely gives further power to the Court, “ to decree a divorce from the bond of matrimony,” in cases not then “ provided for by law.”</p> <p>The Court, therefore, have no power to decree a divorce, under the third provision of Rev. Stat. c. 89, § 2, or under Stat. 1847, c. 13, for the cause of desertion by one of the parties for a time less than “ for the term of five successive years.”</p>