Volume 28 — Maine Reports

A complaint, signed by James C. Hill, of which the following is a copy, was filed, and notice ordered thereon. «STATE OF MAINE. «Cumberland ss.

<p>It is not necessary, that the caption of a deposition should specify the kind of action in reference to which it was taken.</p> <p>Where the testator, by will provided, that “ my will is, that all my property, real and personal, in the town of M. and the income of the same be given to my wife, E. S. to be used and disposed of by her for her convenience and comfort during her life,” and that as to what “ may remain after the decease of my wife, E. S. distribution be equally made to them (his children) who survive,” and the legal representatives of such as have deceased; it was holden by the Court, that E. S. had the power to sell and dispose of such personal estate.</p> <p>In an action of trover for the conversion of sheep, an instruction to the jury by the presiding Judge of the District Court, “ that if they were satisfied that the defendant was aware of the wrong of S. and undertook to aid him to secrete the sheep, and keep them from the true owner; or if they were satisfied, that the defendant had been indemnified before the suit was commenced for withholding the sheep from the true owner, and preventing her from enjoying her property; or that he confederated with P. & S. for that purpose, and that he did withhold the sheep,” is not erroneous.</p>

During the time this action was pending in the District Court, the plaintiff obtained from the Court, a commission to take the deposition of Nathan Howe, to be used in the case. The cause of taking the deposition, certified in the caption, was, because “ the said Nathan is about to go more than sixty miles from said Portland, before the next session of said Court, and not to return in season to attend the same.” The deposition was taken in Portland, Dec. 30, 1845.

Bill in equity. The case was heard on bill, answer and proof.

Debt upon a bond, dated July 13, 1846, given by Seavey, as principal, and the other defendants, as his sureties, to procure the release of Seavey from arrest on a writ in favor of the plaintiffs against him, with the usual condition of such bond.

<p>A contract of insurance is completed, when there is an assent to the terms of it, by the parties, upon a valuable consideration. Neither the giving the premium note, nor the reception of the policy by the insured, are prerequisites to its consummation.</p> <p>One part owner of a vessel, has no authority, as such, to procure insurance thereon, for the other owners. And where several owners claim payment for a loss, where the insurance was procured by one, it is incumbent on them to show his authority at the time, or a subsequent ratification of his acts by them.</p>

Tins case came before this Court on exceptions to the rulings and instructions of the Judge of the Western District Court, Goodenow J. presiding. A copy of the exceptions follows: — “ This was an action of debt to recover the statute penalty for selling a glass of spirituous liquors contrary to the provisions of the act of 1846, chap. 205.

This case came before the Court on exceptions to the ruling and instructions of Goodenow District Judge, of which exceptions a copy follows: — f “ Cumberland, ss., District Court, l Western District,… Held: which could not be, if the return was conclusive. The jury have found, that the defendant did not hurry his vessel to sea, in consequence of the arrest of Seymour. The remarks of the district Judge, in this respect, are believed to be correct.

Debt on a judgment, in favor of the plaintiff and his deceased partner, against the defendant, recovered at the court of common pleas for the county of Cumberland, at June Term,, 1825, for $68,52, debt, and $16,79, costs of suit. The writ was dated June 1, 1846. The case came before the Court on a statement of facts by Use parties, wherein certain testimony was set forth, and objections to portions of it on the part of the defendant.

<p>Where an attachment was made on mesne process, the action entered in Court at the regular term, defaulted, judgment entered up and execution issued; and where at the next succeeding term of the Court, “ on motion of the plaintiff, it was ordered by the Court, that the judgment and execution aforesaid he annulled, and that the execution aforesaid be returned into the clerk’s office; and the action was thereupon brought forward to ” that term, — It was holden, that the attachment was dissolved, and that another attachment, made after the time when the first suit was brought forward, and before the time of the last judgment, had the priority.</p>

This was an action on account annexed, with the usual money counts. The general issue was pleaded.

This was an action of the case, against the defendant for alleged malpractice as a surgeon, and was tried upon tire plea of the general issue, Whitman C. J. presiding, at the November term, of this Court, 1847. The jury returned a verdict in favor of the plaintiff, and assessed the damages at $2025. The defendant moved for a new trial, because the damages were excessive, and because the verdict was against the evidence.

Exceptions from the Western District Court, Goodenow J. presiding. This action of assumpsit, was originally commenced in the municipal court for the city of Portland. The action was entered and defaulted, and afterwards, on the same day, the de fendant appeared, claimed the right to appeal to the next term of the district court, and entered into recognizance to prosecute the appeal.

<p>In an action for use and occupation, where a third person, during the time, was in the actual occupation of the premises, and there was no letting to the defendant, and the only extent of his undertaking was, that he would pay the subsequently accruing rent; such an agreement cannot make the defendant liable in such an action.</p>

<p>There is no provision of law, by which the Atlantic and St. Lawrence Rail Road Company, can be compelled, by an order of the County Commissioners, to pay for the “ services of the commissioners and for their expenses, incurred while they were employed on petitions presented by the company to have the damages assessed, sustained by persons, by the location of that rail road over their lands.</p>

The facts, so far as they can be discovered from the papers in the case, are stated in the opinion of the Court. The case came before the Court on a petition for a certiorari, to the end that certain proceedings of the commissioners in relation to the estimation of damages by the laying out of a road be quashed. said he should take four grounds, either of which was sufficient to show that the proceedings were illegal, and ought to be declared to be void. 1.

This was a writ of entry, wherein were demanded four several parcels of land in Saco, no one of them adjoining either of the others, on one of which was a dwellinghouse and other buildings.

<p>The Rev. Stat. c. 114, § 38, does not exempt machines from attachment or sale on execution. Articles correctly designated by the use of that term, in popular language, cannot be considered as exempted by the words of the statute, “ tke tools of any debtor.”</p> <p>A “peg machine” is not exempted from attachment, or sale on execution, under that section of the statute.</p>

The action was trespass quare clausum fregit. The defence seemed to be based on the alleged want of title of the plaintiff to the land where the alleged trespass was committed. The place of the alleged trespass, was situated between marsh land and the ordinary line of high water, as the sea ebbs and flows. It was admitted, that this land had never been enclosed, and that all persons having occasion so to do passed over it unmolested.

In this case, no copies of the case, or statement of facts, -came into the hands' of the Reporter. It may, however, be (understood from the opinion of the Court. At May Term, 1847, the Chief Justice called on the counsel for the defendant, to show that the suit could not be maintained, and did not call on the counsel for the plaintiff.

The parlies agreed to submit this action to the decision of the Court, upon the following statement of facts, “ This is an action of assumpsit for money had and received, brought to recover the amount of a school district tax assessed against the plaintiffs, including the costs upon a sale of the plaintiffs’ property, taken and sold to pay said tax, by the collector of said town, under the warrant of the assessors, amounting in the whole to the sum of fifteen dollars and…

<p>Where an action was commenced in the District Court, and a verdict was there rendered in favor of the plaintiff for eighty dollars as damages, and the defendant appealed; and on the trial in this Court the verdict was for the plaintiff for twenty dollars, damages; and exceptions to the ruling of the presiding Judge were filed by the plaintiff, and the action was continued; it was holden, that in entering up judgment, the plaintiff must be restricted to the recovery of costs equal to one quarter part only of the amount of damages found by the jury.</p>

Exceptions from the District Court, Goodenow J. presiding. Among the numerous objections made to the rulings and instructions was the following: — > “As evidence that the defendant continued and admitted himself to be an inhabitant of the town of Canton, the plaintiff offered the record of the assignment of a mortgage from Jothaua Bush to the defendant, from the records of the registry of deeds for the county of Oxford, vol. 69, page 49, which may be referred to as a part of…

The facts on which the decision of the Court rests appear in the opinion. said that when a case comes to this Court from the District Court by appeal, a paper cannot be read as a copy of the writ, unless it is certified by the clerk to be a true copy. The presiding Judge therefore erred in permitting the paper to be read. The plaintiff had no right to alter the writ, even with leave of Court.

Trespass quare clausum. The plaintiff claims title by ■virtue of a deed from John Spear to himself, dated January 28th, 1841, and recorded February 23d, 1841; and to establish title in said Spear he puts into the case the originals and also authenticated copies of the original writs, judgments, executions and officer’s returns thereon, in two suits in favor of said Spear against one Samuel Stevens (senior) from which it appears that in the first suit the writ was dated…

<p>Although an administrator of an insolvent estate maybe entitled in proper cases to the aid of this Court, as a court of equitjq to obtain property conveyed by the intestate to defraud his creditors, for the purpose of appropriating the same to the payment of the debts against the estate, yet one creditor cannot maintain a process in equity for that purpose.</p> <p>The plaintiff in equity must do all which the law will enable him to do, to obtain the object of his pursuit; and untilhe has exhausted his legal remedies, he is not entitled to the aid of a court of equity.</p> <p>When it is attempted to reach the avails of property fraudulently conveyed, by a process in equity, it should appear that a judgment has been obtained of some description, which cannot be impeached by the party to be affected by the relief sought; and that every thing has been done therewith, which thelaw requires, to obtain satisfaction of the same.</p> <p>It is generally true, that an erroneous judgment is to be avoided only by a writ of error; but this rule does not apply to cases where a party has a right to impeach a judgment illegally rendered, and yet has no right to reverse it by a writ of error.</p> <p>In a suit in equity, for the purpose of avoiding a conveyance of land by the deceased debtor, it is competent for the grantee to impeach the judgment, which is the foundation of the suit, if such judgment be unlawfully obtained ; and this may be done by plea and proof.</p> <p>And if the debtor has deceased, and his estate has been rendered insolvent, and the claim founded upon the judgment, thus unlawfully obtained, has been laid before the commissioners of insolvency and has been allowed by them, and their report has been accepted in the probate court, this can have no greater validity, to the prejudice of a stranger, than the judgment. The grantee has the same right to impeach the one as the other, and in the samemode.</p> <p>Where an action was intended to be carried by demurrer from the District Court to the S. J. Court, and for that purpose an erroneous judgment was entered for the plaintiff by consent, when on the pleadings, which by agreement might be waived, the defendant was entitled to judgment; and the appeal was entered in the S. J. Court, and the action continued, and then dismissed, because no legal recognizance had been taken, and thereupon judgment was rendered in the District Court in favor of the plaintiff, without any appearance therefor the defendant, or any notice to him, or any change in the pleadings ; it was held, that such judgment might be impeached by one injuriously affected thereby, and not a party or privy thereto.</p>

At the trial of this action many papers were read in evidence, and some depositions. Held: that where a lien exists on property, by virtue of an attachment, the suit or judgment may be proceeded with, for the purpose of securing the benefit of the lien. The bankrupt act, like all other acts, should receive a reasonable interpretation.

The facts sufficiently appear in the opinion of the Court. Applications in writing for insurance were required to be made, and certain questions to be answered. In this case, one was : “ Question. Who is the owner of the building ? Is there any incumbrance ? Answer.

<p>A town is not liable to pay a physician, for his services, in attending upon persons sick with a contagious disease, who have ability to make payment themselves, without his being employed by the selectmen of the town ; although they have, under the provisions of Rev. Stat. e. 21, taken measures to prevent the access of others to the place, and have appointed a person to superintend the house, and take care of its inmates. To make the tow'n liable, the physician must be employed by the selectmen; their knowledge and assent to his performing the services is not enough.</p>

Statement of facts: — “ This is an action of dower. The writ is dated June- Tst,. 1846. The dower was duly demanded on the 12th day of Dec. 1845. “'The demandant claims dower as the widow of Brown Stimpson, late of Thomaston, in this county, deceased, and the marriage is admitted, as having been duly solemnized, January 1st, 1809, and that the husband died in 1838.

This case came before the Court, upon exceptions and upon a motion for a new trial, because the verdict was against evidence. Assumpsit upon a note of hand, dated Feb. 6, 1841, for $215,24. The writ was dated June 9,1845.

<p>Where a line is described in the deed as running from a known bound, a specified number of rods, to a stake, in the absence of all satisfactory proof of the position of that stake in the earth, the extent of the line is to be ascertained, by measuring irom the known boundary, the number of rods named in the deed.</p> <p>Where the same grantor conveys to two persons, to each one a lot of land, limiting each to a certain number of rods, from opposite known bounds, running in a direction to meet, if extended far enough, and by admeasurement the lots do not adjoin, when it appears from the same deeds, that it was the intention that they should ; a rule should be applied, which will divide the surplus, over the admeasurement named in the deeds, ascertained to exist, by actual admeasurement upon the earth, between the grantees, in proportion to the length of their respective lines, as stated in their deeds.</p>

This case came before the Court, upon the following exceptions. This was an action of assumpsit on a joint and several promissory note, signed by John «Holmes, deceased, and by the defendants, given to the Mariner’s Bank, for two hundred dollars, dated October 26, 1841. The note and indorsements thereon, may be referred to. The note was read to the jury, and here the evidence on the part of the plaintiffs rested.

<p>If supplies are furnished, by the overseers of the poor of a town, to a person alleged to be a pauper having a settlement in another town, their opinion or adjudication that the supplies furnished wore necessary, although made in good faith, is not conclusive of that fact in a suit to recover the value of such supplies.</p> <p>Exceptions will not be sustained, on the ground that the presiding Judge erred in declining to give a certain instruction to the jury on request, unless the exceptions show, that the instruction requested was applicable to the case.</p> <p>If a part of an instruction requested by counsel, upon a particular point at a trial, be correct, and a part erroneous, it is not the duty of the Court to give such part as may be correct, but the whole request may well be declined.</p>

This case came before the Court upon the following report by Redington District Judge. “ Debt to recover a penalty for passing plaintiffs’ bridge with intent to avoid payment of the legal toll, contrary to Rev. Stat. chap. 80, sect. 35. “ The writ and pleadings may be referred to.

This was an action to recover damages for an injury to a ¡gondola, belonging to the plaintiff, bailed to the defendant, and •alleged to have been frozen in the ice, through the negligence ■and want of care of the defendant. The defence set up was, that the gondola had been delivered to the plaintiff before any injury had happened to it. The verdict was for the plaintiff, ■and the defendant filed exceptions.

<p>This case was submitted on a statement of facts, making the proceedings of the justices and the disclosures of Barker, the principal debtor, a part of the case.</p> <p>In this statement it was agreed, that the testimony of John Glidden and of Sarah Small, tending to show that in fact nothing was due to them, respectively, from Barker at the time of his disclosures, should be taken and made a part of the case, if the same was admissible and material.</p> <p>The material portions of the disclosures are given in the opinion of the Court.</p> <p>that the disclosures, on their face, showed that the debtor had made a fraudulent disposal of his property; and that in such case, even if the oath be administered by the justices, it shall bo void and of no effect.</p> <p>The debtor disclosed accounts in his favor, and they should have been appraised as the statute requires. He says, he did not know, that any thing was due to him, but he also says, there had been no settlement, and that he did not know to the contrary. The counsel here went into a calculation, for the purpose of showing, that upon the disclosures, enough appeared to make it certain that on a fair settlement there would be a balance due to Barker from Mrs. Small.</p> <p>The papers should show, that the justices wore legally selected and were competent to sit, and the Court duly organized, or they could have no jurisdiction. The papers should show, that every thing required by law to be done, had been done.</p> <p>said that the notices and selection of the justices appeared by the papers to have been perfect ; and the argument on this point, would have been more properly addressed to the justices, who by statute.are made the final judges of this, than to this Court.</p> <p>Barker had never made any charges to Mrs. Small for his personal services, and none were ever intended to be made. A man is at perfect liberty, whether rich or poor, to perform such services gratuitously, or under the expectation of gaining more than the value by a voluntary gift afterwards. Without making Mrs. Small a debtor, where she never expected to be and where Barker never supposed that she was, the balance is in her favor.</p> <p>The answers must be taken to be true until the contrary is shown; and by them nothing was due.</p> <p>The statute could never have contemplated the appraisement of the mere evidence of a demand which had been paid, or where nothing was due.</p>

<p>If the breach of the condition of a poor debtor’s bond be caused by the omission to appraise a note, disclosed on the examination, the amount of damages, under the statute of 1848, c. 85, § 2, is not to be limited to the value of the note; but any legal proof, going to show the ability of the debtor to have paid the debt, or some part thereof, is admissible, and should be taken into consideration by the jury in the assessment of damages.</p>

<p>There is no prohibition, either at common law or by statute, of the service of process, in criminal cases, on the Lord’s day, except in so far as the service of the same might be unnecessary on that day.</p> <p>A warrant, issued upon a complaint under the statute of 1846, c. 205, to restrict the bale of intoxicating drinks, may be lawfully executed on the Lord’s day ; although, perhaps, subject to the limitation, that it should not be an unnecessary act, to be performed on that day.</p> <p>if the officer serving such warrant, would not be justified, because the act was unnecessary, it would seem, that such persons as were called by him to aid and assist him in the service, might nevertheless be excusable.</p>

Bill in equity to redeem a mortgage. The case was heard upon bill, answer and proof. The opinion of the Court gives a sufficient statement of facts.

This was a bill in equity, and was heard on bill, answer and proof. The facts are sufficiently stated in the opinion of the Court.

<p>If a record of a judgment of a justice of the peace has been lost, the party ■who would avail himself of it must show, that he has exhausted, in a reasonable degree, all the sources of information and means of discovery, which the nature of the case would naturally suggest, and which were accessible to him, before other evidence is admissible.</p>

This was a writ of entry, brought to recovera piece of land in Gardiner, described as twenty-two feet wide on the street, and extending eastwardly a certain course and distance, and thence on a certain other course to low water mark. The defendant disclaimed the residue of the demanded premises; and issue was joined upon the part claimed.

This was a real action brought to recover lots numbered. 10, 11, 12, and half of 12 in Windsor. The case was heard on exceptions, and on one motion to set aside the verdict against the tenant, because it was against evidence, and on another, on account of newly discovered and material evidence. At the trial before Tenney J. as the exceptions state, “ Leonard Cooper, called by the plaintiff and objected to by the defendant,” testified to certain facts.

This case came before the Court on the following statement by the parties. This is an action for money paid upon the following agreed-statement of facts. John Ham, the defendant, was duly elected constable of the-town of Sidney, at the annual March meeting in 1840, and on the eleventh day of said month gave his bond, and was duly qualified; said bond was signed by himself as principal, and by the plaintiff and three others as sureties.

<p>The same person cannot at the same time, in a suit at law, be a plaintiff and defendant, where a contract is to be euforced.</p> <p>If an action be brought against two persons as partners, and one of the defendants'and two others as partners in another concern, are summoned as trustees, they cannot be holden as trustees, and must be discharged.</p>

This case was heard upon a demurrer to the following bill in equity inserted in a writ. “ In a bill of complaint in equity wherein your orator, Nathaniel M. Whitmore, humbly shows your honors, that one Allen Crowell of Gardiner, in the county of Kennebec, did on the 13th day of June, A. D. 1835, make and enter into an indenture with Robert H. Gardiner, of the said Gardiner, wherein and whereby among other things the said Crowell, on his part, covenanted and agreed with the…

Exceptions from the Middle District Court, Rice J. presiding. This was an action of assumpsit, commenced April 24th, 1847, upon a joint note signed by the defendant and one Ira Putnam, bearing date November 7th, 1839, and payable on the 24th of May, then next, with interest. On the back of the note is an indorsement of $30,71, dated Jan’y 11th, 1842. Ira Putnam deceased, Oct. 15th, 1843.

This case came before the Court upon the following exceptions to the ruling of Goodenow, District Judge. This is an action of trespass.

This case came before the Court upon the following statement of facts: — This is an action of assumpsit on a note of hand, given by the defendant to the plaintiffs, for the amount of sundry assessments laid upon his stock in that company, and which at the date of said note were due and unpaid. The plaintiffs are a corporation, duly established in this State. Said note was made payable at the office of the Treasurer of said company at Waterville.

On the following exceptions from the Western District Court, Goodenow J. presiding, this case came on for hearing. This was a complaint under the Bastardy Act, and was tried upon the general issue at the last June Term of this Court. 'The usual evidence preliminary to the admission of the complainant, as a witness, was offered, and the Court thereupon •permitted her to be sworn and axamined as a witness. The defendant introduced and examined several witnesses in defence.

“ STATE OF MAINE. “Franklin ss. — At a justice court held before Charles Pike, Esq. one of the justices of the peace within and for said county, at my office in Kingfield in said county, on the 8th day of April, A. D. 1846, Simon W. Putnam, late of New Vineyard, county of Franklin, against Andrew M. Oliver of Freeman, in the county of Franklin, in scire facias against said Oliver as trustee of John Reed, as per writ on file with said justice, will appear. “ The said action…

Statement of facts : — “ This is an action brought upon a poor debtor’s bond, dated the 16th day of May, 1846. “Writ is dated the 27th day of January, 1847-. “ The defence in this action is, that Reed, the principal defendant, performed one of the conditions of the bond by taking the poor debtor’s oath, before two justices of the peace and ■quorum'within and for the county of Kennebec, within which ■county he was arrested and gave the bond in suit, within six ¡months from…

<p>The property in a vessel may be legally transferred without a bill of sale or other written evidence of it. In such case, there must be proof of an agreement to sell and purchase, and of a valuable consideration also, when the title is asserted against creditors of the vendor.</p> <p>An absolute conveyance of personal property cannot be legally proved in a court of common law, to have been made only to secure the purchaser for liabilities assumed, and be good against the creditors of the vendor.</p> <p>A delivery of a vessel, in port at the time of sale, is as necessary to perfect the title against creditors, as it is when any other description of personal property is sold.</p> <p>A sale of goods, made by an officer on execution, must be regarded as a legal transfer of the property, although he may not have kept it four days after the taking on the execution and before the sale.</p> <p>Repairs made upon a vessel by the owner, after he became the purchaser, cannot be set off against her earnings prior to the purchase.</p> <p>A sale of a vessel by an officer on execution, conveys nothing but the vessel as it existed at the time of the sale.</p> <p>If a part of a vessel bo attached, and the officer takes a receipt therefor, and she is sent to sea, the receipter is not liable to the officer for any earnings of the vessel.</p> <p>If a bill of sale is in the form of an absolute conveyance, and is made without any other consideration than to secure the purchaser for liabilities assumed, it is still valid so far as it does not come in conflict with the rights of creditors of the vendor. And such sale will transfér all the right and interest of the vendor to the purchaser, although the property was under attachment at the time of the sale.</p> <p>Although a bill of sale be made on the Lord’s day, one who is not a party to the sale, and who has no interest in the property, which is the subject of contest, cannot prevent a recovery by the purchaser, by showing that he violated the statute in acquiring his title.</p> <p>The purchaser of personal property under attachment, may maintain an action against the attaching officer, for an injury done by him to it after the purchase. s</p> <p>And the purchaser may waive the tort, and recover, in assumpsit, any money in the hands of the tort-feasor, as the fruits derived from the wrongful act.</p> <p>An agent is liable for misfeasances to the owner of the property injured, whether he acted by the direction of his principal or not.</p>

On report of the presiding Judge, and on motion for a new trial because the verdict was against the evidence. The evidence at the trial was all given in the report, but is wholly unnecessary to be seen, in order to understand the questions of law.

Exceptions from the Middle District Court, Redington J. presiding. “ Somerset ss. —■ District Court, January Term, 1848. “ Nathaniel W. Morse v. Sheldon Reed. “ This is an action of replevin for cattle impounded, commenced before a justice of the peace. The general issue only was pleaded, before the justice.

Assumpsit. The writ contained two counts, one for money had and received, and the other on an account annexed, of which a copy follows : — “ Daniel C. Emery to Samuel Parker and Maximilian J. Webb, Dr. — To balance due for cutting and hauling logs on .Brassua in winter of 1841 and 1842, $1000,00.” On motion of the counsel for the defendant, the Court ordered a “ bill of particulars to be filed,” and thereupon the following was filed by the plaintiff: — “ Daniel C. Emery to…

<p>The covenant of warranty in a deed of land, if not released or annulled, ordinarily runs with the land to the last purchaser, even by a deed of release.</p> <p>Where land is conveyed by deed of warranty, and the same premises, at the same time, are roeonveyed in mortgage, with like covenants, the covenants in the mortgage deed will not operate to preclude the maintenance of an action on the covenants of the absolute deed.</p> <p>The grantee of land by deed with covenants of warranty, while he continues the owner of the land, may release or annul the covenants. But if the covenants be not discharged or annulled, and pass with the land by another conveyance, the first grantee cannot release or annul them, unless, he has been called upon and has paid damages to his grantee for a breach of his own covenants.</p> <p>A covenant of warranty does not include an incumbrance which the grantee, by an instrument of as high a nature as the deed, has engaged to discharge; and the grantee cannot, therefore, nor can a second grantee with notice enforce such covenant as an estoppel, against a covenant of warranty, by himself, of the same premises to his grantor.</p> <p>When the grantee in a deed with covenants of warranty, who has given to his grantor a bond covenanting to remove and discharge a mortgage thereon, has deceased, and his estate is insolvent, all claims existing between the estate and the obligee in the bond must be settled before the commissioners of insolvency; and the covenants of warranty in the deed will be thereby rendered inoperative.</p> <p>See Rev. Stat. e. 115, sections 16 and 17.</p>

<p>If the property attached by an officer has gone back into the hands of the debtor, ho has no claim upon the officer for it, and if the attaching creditor has released the officer from his liability to him, then, as neither creditor nor debtor lias any claim upon him, the officer can maintain no action upon a receipt giren for the property attached.</p> <p>In an action of assumpsit, if another person be made a co-plaintiff, by amendment of the writ by leave of Court, the attachment of property upon the writ is thereby dissolved.</p> <p>If there be a good cause of action against the receiptor at the time of the commencement of tile suit, but the right of action is taken away by a neglect to preserve the attachment afterwards, it seems that nominal damages may be recovered; but where no cause of action upon the receipt existed when the suit was commenced, the action must fail.</p>

<p>The facts in the case, which came before the Court on an agreed statement, are found in the opinion of the Court.</p>

This case came before the Court, on the following statement by the parties. “ Penobscot ss.— District Court, May Term, 1848. “ Ephraim Severance v. Wrn. C. Hammatt, Ex’r. “ This action was assumpsit on an account annexed to the plaintiff’s writ, in which plaintiff claimed pay for work and labor, stated as follows: — o “ William C. Hammatt, Executor of William Hammatt, to Ephraim Severance. Dr. “To work and labor on Wm.

<p>On the following exceptions to the ruling of Tenney J : —</p> <p>“ This was an action of ejectment for an undivided half of a farm in Dexter.</p> <p>“ The plaintiff introduced a warranty deed of the premises, Royal Copeland to Joseph T. Copeland, dated May 10, 1836, acknowledged July 5, 1836, recorded April 7, 1837 ; mortgage deed, Joseph T. Copeland to Calvin Copeland, dated July 5, 1836, acknowledged July 6, 1836, recorded July 11, 1836 ; warranty deed, Joseph T. Copeland to C. Copeland, dated Sept. 11, 1840, acknowledged Sept. 11, 1840, recorded Sept. 16, 1840.</p> <p>“ The tenant then introduced a mortgage deed of the premises, Joseph T. Copeland to Royal Copeland, dated June 10, 1836, acknowledged June 1836, and recorded April 6, 1841; likewise a note of $600, and two notes of two hundred each, secured by said mortgage, said notes having been signed by said Joseph T. Copeland.</p> <p>“ The tenant then called Joseph T. Copeland, who was objected to as interested, but the objection was overruled, and he was permitted to testify, and did testify, that when he gave the mortgage deed to the demandant, he informed him of the prior mortgage given to the tenant, his father, and that prior to the giving said mortgage he had informed him of said previous mortgage.</p> <p>“ On cross-examination he testified, that there was a mortgage on these premises to the town of Dexter, to secure $500, of which he had made no mention to the demandant. The plaintiff held notes against him to the amount of about $900, all of which were given up when the $1000 note mentioned in the plaintiff’s mortgage was given. All his personal property was in the hands of the demandant; that he had a horse and chaise which were in his hands to secure him; and that he thought his father’s name was on none of the notes given up when the mortgage to the demandant was executed. That when he purchased the premises he gave therefor, the Pressey place, and a note for $600, and that that note, and the other two, which were for debts justly due his father, were included in the mortgage given to his father. That to make up the $1000 note to the plaintiff he received of him personal property to make up, with what he owed him before, that sum; that he helped build his father a house near the Pressey mill, in doing which he received aid from the demandant. That the demandant let him have personal property, (horse and wagon) with which he paid the joiner, that he sold a part of the personal property on which the demandant had a claim to the amount of 2 or 300 dollars, to one Safford, that all his personal property was mortgaged to the demandant, and that when he gave the mortgage of the real estate to the demandant, there was no other name than his own on any notes given up. All his personal property was discharged from mortgage, if there was a mortgage, but not certain whether there was any.</p> <p>“The witness further testified that Sept. 11, 1840, he settled with plaintiff and gave the warranty deed of that date ; that he was owing the demandant 400 or 500 dollars beside the mortgage note ; that at the time of the settlement the plaintiff allowed him $900 for the premises in dispute, and that he gave his note for $600, being the balance due him after being credited as above stated for the farm ; that at this settlement nothing was said about the mortgage to the tenant as he recollected. Said Copeland further testified, that the place in 1836 was worth $2200 or $2500, that there was no agreement that what he did in building the house should go in payment of the farm, and that he owed his father a considerable sum, on account, and that there had been no settlement between them; that his father had paid out for him, for which he has received nothing, $460.</p> <p>“ Samuel Copeland, testified that in June, 1836, the plaintiff met the defendant — that they had a conversation about the trade between Joseph T. Copeland and the defendant— that the defendant told the plaintiff that Joseph had given the Pressey mill and his note for the farm, and that a mortgage was given — that the plaintiff inquired if the mortgage was on record, and was informed it was not.</p> <p>“ Comfort Spooner testified that he was present at a conversation in the spring of 1840, between the demandant and one McCrillis, in which, as he said, the demandant stated to him that Joseph T. Copeland told him when he gave him the mortgage, that he had given his father one, but that there was but little due on it, and he was going to take it up in a few days.</p> <p>“ Hiram Spooner was present at the same conversation, and testified substantially to the same facts.</p> <p>“ The demandant then called Hiram Salford, who testified he resided on the premises in dispute, 3 years, from April 1837, to 1840, that he had originally a lease from Joseph T. Copeland and Royal Copeland, that Joseph T. Copeland’s interest was assigned to the plaintiff, that the whole farm in 1836, was worth from $1000 to $1500 and was now worth less, that the first year he paid rent to Royal, some to Calvin, paid no more than one-half to defendant, paid other one-half mostly to demandant, paid to Joseph T. a part the first year, all after first year paid to demandant; that the tenant said when he sold the farm to Joseph, he was to have one-half the Pressey mill, and Joseph was to build a house. Joseph caused the house to be built. Joseph T. told me that was the bargain. He further testified that there were no objections by defendant, to plaintiff’s receiving half of the rent, that the tenant hired the farm one year (1840) of this demandant, and paid him vent for the same ; that in December, 1839, the plaintiff and defendant talked of dividing the place, went on the farm and made a parol division of the same; this last was in Dec. 1840 ; witness went with them.</p> <p>“ Defendant said after the division agreed to meet at the defendant’s for the purpose of bidding for choice; that the defendant told him a day or two afterwards, that Calvin bid $90, and he bid $95 for choice, and that he took the north half, and that they could not exchange deeds till Calvin should get a deed from Joseph T. Copeland.</p> <p>« The witness further testified, that he talked of purchasing of Calvin, his half the farm. The defendant knew of it, and told him he thought it would be a good plan, and talked of buying defendant’s half. Next year after witness carried on the whole place; defendant was to have one-fourth of the proceeds.</p> <p>“ In spring of 1841, first heard of mortgagee’s claim.</p> <p>“ Witness further testified that Joseph T. Copeland told him that he had bought the premises in dispute, of his father, and was to pay him by the Pressey place, which was deeded to him, and by building the house near the mill, and that he, Joseph, did work on the house.</p> <p>“ Witness further testified that in 1836, he purchased a horse and chaise of said Joseph, which he learned was under mortgage to plaintiff, that he so informed Joseph T. Copeland, who denied it, that he went to see the plaintiff and there saw a mortgage signed by. Joseph T. Copeland, and two if not three notes signed by him, and his father ; he did not read them, but the filling was over 200 dollars ; told Joseph of this, and he said he would make arrangement.</p> <p>“ Luther Copeland, called by the demandant, testified that he was the brother of the parties, that he lived within 130 rods from the tenant, that the tenant told him before 1841, he had sold half of his farm to Joseph T. Copeland, and purchased half the saw mill in payment of the farm, he did not say how the rest was to be paid — he said Joseph was to build him a house, and let him have one half the saw mill towards the-place; that he was present when both parties talked about a division 2 years ago last fall; that they asked his opinion about-dividing ; that both told him they had divided the land- verbally, that the tenant told him that they bid for choice, the demand-ant bid $90, he bid $95, and there it remained, that the defendant said they could go no further, till some writings were fixed between Joseph and plaintiff; value of whole farm in 1836,. was $ 1600. That defendant carried on the farm 3 years ago; that Royal Copeland always spoke of his brother as owning-half and that he-never heard of the mortgage claim till 1841. Joseph told me the expenses of the house and the mill, would1 pay or overrun the farm ; the house not completed ; said his bills: which he had expended and the mill would pay for one-half the-old farm, which he bought of his father. Defendant helped1 build the house at the mill, he worked there himself; did not know who paid the hands ; defendant was there most of the time, and took charge of it; Joseph was there occasionally off and on ; place was bonded in 1836, for $2400; house underpinned with cedar; witness sold cedar to defendant. Witness worked one half day planting; Joseph paid him for 2 or 3 day’s work.</p> <p>“ Upon this evidence, the counsel for the demandant requested the Court to instruct the jury, that if the demandant had notice of the prior mortgage, when he took the warranty deed of Sept. 11, 1840, still if the jury should be satisfied that the demandant was led by the acts, conduct, or declarations of the tenant, to believe that he did not claim by virtue -of his mortgage, or that the same had been paid by the mortgager, and the demandant took said deed of Sept. 11, and paid or allowed said Copeland, for the land, in consequence of such belief, so induced by the tenant, that he was entitled to recover.</p> <p>“ This instruction the presiding Judge declined giving, but instructed the jury that there could be no waiver by the tenant of his rights by parol; that if the demandant had notice of the first mortgage, prior to the time of taking his mortgage, the mortgages to the defendant would take precedence ; that any account towards building the house, by Joseph T. Copeland, not settled, or agreed to be allowed or indorsed, on the notes to the tenant, or the notes given up, would not be payment thereon ; and that nothing short of actual payment of the mortgage notes, by Joseph T., or a deed of release from the defendant, could make out a good title in the demandant; and directed the jury to find if the demandant was proved to have had notice of the prior mortgage, and if so, to render a verdict for tenant, unless the notes secured by mortgage to tenant, were paid ; if no such notice was proved, verdict was ordered to be for demandant.</p> <p>“ The jury returned a verdict for the tenant.</p> <p>“ To the above ruling the demandant excepts.</p> <p>“ John Appleton, for plaintiff.</p> <p>“ The foregoing exceptions having been shown to me, before the final adjournment" of the Court, and found conformable to the truth,- are allowed. “ John S. Tenney, Justice presiding.”</p> <p>At the June Term in this county, 1848, this case was said to have been argued in writing, and was continued nisi. The opening argument was by</p> <p>The counsel for the demandant requested the Court to instruct the jury that if the demandant had notice of the prior mortgage to the tenant when he took the warranty deed of Sept. 11, 1840, still if the jury should be satisfied that the demandant was led by the acts, conduct or declarations of the tenant to believe that he did not claim by virtue of his mortgage, or that the same had been paid by the mortgager and the demandant took said deed of Sept. 11th, and paid or allowed said Copeland for the land in controversy in consequence of such belief so induced by the tenant, that he was entitled to recover.</p> <p>This instruction the presiding Judge declined giving, but instructed the jury that there could be no waiver by the tenant of his rights by parol; that if the demandant had notice of the first mortgage prior to the time of taking his mortgage, the mortgage to the defendant would take precedence; that any account towards building the house by Joseph T. not settled or agreed to be allowed on the notes to the tenant, or the notes given up, would not be payment thereon ; and that nothing short of actual payment of the mortgage notes by Joseph T. or a deed of release from the defendant, could make out a good title in the demandant; and directed the jury to find if the demandant was proved to have had notice of the prior mortgage, and if so, to render a verdict for the tenant, unless the notes secured by the mortgage to tenant were paid, &c.</p> <p>These instructions substantially were, that a mortgage could not be discharged by any thing short of actual payment, or waived by parol, and that though the mortgagee had by acts, conduct or declarations, held out to the world that he had no claim upon the premises mortgaged, and others had acted upon a belief by him induced that such was the fact, that still he might retain his rights as a mortgagee.</p> <p>I think the Court on the instructions given and withheld erred.</p> <p>1. A mortgage may be waived or discharged by parol, and without actual payment.</p> <p>In Martin v. Mowlin, 2 Burr. 969, Lord Mansfield says, “ that the mortgage is a charge upon the land ; and whatever will give the money will carry the estate on the land to every purpose. The assignment of the debt or forgiving it, will draw the land after it as a consequence. Nay it would do it though the debts were forgiven only by parol, for the right to the land would follow notwithstanding the statute of frauds.”</p> <p>In' Wents <?/ ux. v. Dehaven, 1 S. & R. 312, Yea tes J. says, “ the forgiving the debt will draw the land after as a consequence. It will do it though the debt be only forgiven by parol.” See Pow. on Mortgages, 144; Richards v. Sims, Barn. 90.</p> <p>2. The defendant admitted the validity of our mortgage, offered to divide, and the division was delayed at his suggestion till the plaintiff could procure a discharge of the equity ; the defendant not setting up nor claiming any interest adverse to the demandant.</p> <p>Now the tenant, by his acts and conduct is estopped in pais, to setting up his mortgage as against the demandant, having held out' to him that it was paid or that he did not claim under it. Bezel v. Odell, 3 Hill, 220.</p> <p>A party will be concluded from denying his own acts or admissions, which were designed to influence the conduct of another and did so influence it, and when such denial will operate to the injury of the latter. Welland Canal' Co. v. Hathaway, 8 Wend. 483; Presb. Cong, of Salem v. Williams, 9 Wend. 147; Pickard v. Sears, 6 Ad. & Ellis, 469; Gregg v. Wells, 10 Ad. & Ell. 90.</p> <p>■ Só too, concealing his claim and recognizing ours, and ad-wising others that they had better purchase he' is not now to' ■assert any claim. , Lee v. Hume, 7 Cranch, 366; Brinkerhoff 'V. Lansing, 4 Johns. Ch. 65.</p> <p>The plaintiff claimed the demanded premises by virtue of a mortgage deed from Joseph T. Copeland to him, dated July 5th, 1836, and recorded the 11th of the same month, and also !by a warranty deed from said Joseph T. to him, dated Sept, lith, 1840, and recorded Sept. 16th.</p> <p>The defendant claimed to hold the premises by virtue of a mortgage deed from the same grantor, Joseph T. Copeland, to him, dated June 10th, 1836, being prior to the plaintiff’s deed, but not recorded until subsequently to the recording of the demandant’s, to wit: on the 6th of April, 1837.</p> <p>Joseph T. Copeland, the grantor of both parties, derived his title from Royal Copeland by deed dated May 10th, 1836, and gave back to him the mortgage of June 10th to secure the payment of the purchase money, being one note of $600, and two other notes of $200 each.</p> <p>The recording of the defendant’s deed, being subsequent to that, of the plaintiff’s, gave rise to the question of notice to the demandant of the deed to Royal Copeland and which was fully proved and settled by thet verdict of the jury.</p> <p>The question of the payment or discharge of defendant’s mortgage was also inquired into, and the fact, that it. had never been paid or satisfied in any way, not only found by the verdict of the jury, but expressly admitted on the trial by the plaintiff’s counsel.</p> <p>There was no suggestion of any unfairness in any of these transactions or of fraud or collusion between the parties, but it appears by the evidence reported that at one time, there were conversations about a division of the place and some steps taken to effect it, and it was this testimony which gave rise to the question presented to the Court in this case, to wit: whether the defendant by what then took place waived or relinquished his claim to the property secured by his mortgage.</p> <p>It will be seen by recurring to the testimony reported upon this point, that the evidence upon the trial falls very far short of the facts assumed in the instructions requested of the Court. Nor is there any thing in that testimony inconsistent with the validity of the defendant’s mortgage at that time, or his subsequent assertion of his rights under it. No language is imputed to him indicating any intention of relinquishing or waiving any right or claim. He did not intimate that it was paid or in any way satisfied, or that he did not intend to claim by it, or that he would relinquish his rights to the demandant or hold them subordinate to his. It appears that at the time the demandant took his deed, he was informed by Joseph T. Copeland that he expected to be able to settle up the prior mortgage to the defendant, and the plaintiff' was content to take it and run his risk, either that this would be done or that he could hold by getting his deed recorded first, (he knew defendant’s deed was not recorded,) or that he might obtain a division of the place and make his title good. The movements for a division originated with the plaintiff, no doubt with this view, and though the defendant talked with him about it, it appears that he finally declined altogether to complete any division, for what particular reason does not very clearly appear, most probably because his mortgage had not been satisfied, which is about as good a reason as could well be imagined. It may be too, that the defendant, ignorant and unacquainted with business, fell into the very common error of supposing that he had lost his rights by the prior recording of the plaintiff’s mortgage, until he was better advised. (The plaintiff no doubt had such in impression.) Suppositions that fully explain all that was done or said about a division, and with a much greater degree of probability than thé pretence that he ever intended to relinquish rights so important to him without motive or consideration.</p> <p>.Upon this evidence of the acts and declarations of the de fendant, the plaintiff’s counsel contend that the defendant is estopped '“in pais” to setting up his mortgage as against the demandant, having, as it is said, held out to him that it was paid and that he did not claim under it, and that the demandant had acted upon that representation, to his prejudice.</p> <p>This is assuming what the case does not show and what is not true in point of fact. The defendant never held out to the demandant, that his mortgage was paid or satisfied, or that he did not claim under it. Nor did the plaintiff ever act upon any' such representation ; nor could he ever have been prejudiced by any representations or acts of the defendant, as the case clearly indicates. He was fully apprised of the existence of the defendant’s mortgage, when he took his from Joseph T.. Copeland. Every thing done or said by the defendant respecting the mortgage or division of the place, was subsequent to that time, and could not therefore have influenced him in taking his mortgage. When he took his deed of Sept. 11, 1840, the relations of the parties were in no respect changed, his mortgage was not thereby discharged, nor were any new liabilities assumed, or created against the demandant. The plaintiff, too, has his remedy against Joseph T., on his covenants of warranty.</p> <p>There is nothing in the case upon which to predicate an estoppel. The question of notice to the plaintiff’ of the defendant’s mortgage, was settled by the verdict of the jury. The demand-ant is thus shown to have been put upon his guard, being acquainted with all facts in the case, necessary for him to know, for the preservation of his rights, as fully as they were known to the defendant. It is where important information in possession of one party, is suppressed or concealed from another, and such other party is induced to act thereby to his prejudice, that an estopp.il can be set up. In a question of title to real estate, there can be no estoppel where there is a registry of the deed, or what is equivalent in law, notice to the party interested, which is the case here.</p> <p>Upon this point see the case cited by plaintiff, of Brinkerhojf v. Lansing, 4 Johns. Ch. 65. See also, Parker v. Barker, 2 Mete. 423.</p> <p>It is contended by the plaintiff, that a mortgage may be waived or discharged by parol, without any actual payment, and authorities are cited to show that file forgiving the debt secured by a mortgage, or assigning it, will draw the land after it as a consequence ; assigning the mortgage would convey the mortgagee’s interest in the land ; the assignee would stand in the place of the mortgagee, and thus the assignment would draw the land after it; so too, as between the mortgager and mortgagee, the forgiving the debt secured by the mortgage, would operate in the same manner as payment, thus extinguishing altogether, and discharging the incumbrance, and the land which was conveyed conditionally, would revest, the condition having been performed ; and thus the forgiving the debt would draw the land after it. An examination of the authorities cited by the plaintiff, will show that this is the manner in which this principle is to be understood, and this comes within the instructions actually given by the 'presiding Judge in this case. He instructed the jury to find if the debt had been paid or discharged, and who by their verdict, found that it had not. The foregoing then, has no applicability to the case under consideration, which is between the demandant and tenant, and relates to their interest, under their different mortgages, and who stand in very different relations from a mortgager and mortgagee,. It was in this sense, that the instruction was asked and refused by the Judge presiding. He was requested to instruct the jury, that if the tenant, who was the prior mortgagee, ■ had done certain acts or made certain parol declarations to the demandant, who was the subsequent mortgagee, that then, &c. Thus presenting the simple question, whether any thing was said or done by the defendant to the plaintiff; the defendant’s mortgage being undischarged and the debt remaining unpaid and “unforgiven,” amounts in law to a discharge, or waiver of his mortgage.</p> <p>Or to state it as the counsel for the plaintiff would contend, whether any “ acts or parol declarations,” by a prior to a subsequent mortgagee are valid and binding in law, and have the effect of discharging or postponing such prior mortgage, there being a registry or notice of the same.</p> <p>This is meeting the question fully and on much broader ground than the case warrants and the defendant contends that no such'consequences could follow any such acts or declarations.</p> <p>Suppose the defendant in this case had made a specific parol agreement, with the plaintiff, that his mortgage should stand discharged and that be would never claim under it. It would certainly be a much stronger case than this, which the plaintiff endeavors to raise by implication. Yet such an agreement would, not be- binding, being clearly within the statute of frauds. It would be a contract for “ an interest in or concerning lands,” and all such contracts are void by that statute. See Revised Statutes, chap. 136, section 1; Bliss &,• al. v. Thompson, 4 Mass. R. 488 — 491; Sherburn v. Fuller, 5 Mass. R. 133 ; Boyd v. Stone, 11 Mass. R. 342; Kidder v. Hunt, 1 Pick. 328 ; Hunt v. Maynard, 6 Pick. 489; Adams v. Townsend, 1 Mete. 483.</p> <p>To make the title to real estate dependent upon the “ acts, conduct” or “ parol declarations” of parties would be unavoidably attended with the utmost uncertainty and inconvenience, and would open a way for all that fraud and uncertainty which the law has so wisely and carefully guarded against. No man is obliged to take any thing upon trust in relation to the title to real estate, the law has provided ample means of knowledge to every one taking a title to lands, and he can only suffer by a culpable negligence, in not availing himself of those means.</p> <p>In the case under consideration the demandant has never been misled or subjected to any loss or prejudice by any acts or agreements of the tenant; he has at most, according to his own showing, only failed to obtain an advantage to which he was not entitled, by making his second mortgage available against the rights of the defendant as secured by his prior mortgage, and it should not surely be imputed to the law as a fault, that it cannot aid him in this undertaking.</p>

This caso came before the Court, upon the following statement of facts: — “ Trover for a shingle machine and clapboard machine. The conversion was alleged to have been on July 15, 1844.

Exceptions to the Eastern District Court, Hedington J. presiding. A copy of the exceptions follows: — “ The writ may be referred to. Plea the general issue, with a brief statement setting forth the bankruptcy of defendant and his discharge by the District Court of the United States, &c. “ There was evidence tending to show a new promise since the bankruptcy.

Report of the trial before Shepley J. “ This is an action of assumpsit on a contract signed by the defendants, dated May 4th, 1846, which is to be copied. “ It appeared in proof, or was admitted, that before the year 1846, a dam had been built at the outlet of a lake, called by the parties Chamberlain lake; that the waters which formerly flowed from the Allegash stream passed into that lake, and that the waters passed out of the lake at that outlet before the dam was built…