Volume 29 — Maine Reports

This case was argued in writing. The Reporter received no copies of the case. The question decided, however, will be understood from the'opinion of the Court.

Assumpsit upon a promissory note. The plaintiffs produced, proved and read the note. The defendants produced and read a copy of a judgment rendered thereon in the Court of Common Pleas, in the county of Middlesex and Commonwealth of Massachusetts, and contended that the suit could not be maintained upon the note. The return of the officer who served the writ was as follows:— “ Worcester, ss.

Writ or entry demanding one of the lots of land in Argyle located for public uses.

Exceptions from the Eastern District Court, Allen J. presiding. Assumpsit on account annexed ; writ dated March 6, 1846. The general issue and statute of limitations were pleaded. Plaintiffs introduced their book of original entries with the supplementary oath; the docket of the Court in which the actions, were entered, judgments rendered, and executions issued. And also the deposition of Oliver Frost, Esq. Writ, pleadings, and deposition may be referred to.

<p>By the latter clause of the eighth section of the U. S. Bankrupt Law of 1841, declaring that certain actions should not be maintained, “ unless the same shall be brought within two years after the declaration and decree in bankruptcy, or after the cause of action shall first have accrued,'1 is intended, merely, that no suit by or against the assignee, claiming an adverse interest in any property or right of property, transferable to or vested in such assignee, and no suit by or against any other person claiming an adverse interest in the same, should be maintained, unless brought within the two y ears. An action upon a note, therefore, given by a person to the bankrupt, before the decree of bankruptcy, is not barred by such limitation of two years.</p> <p>If an action be brought, in the name of the assignee, on a note given by the defendant to the bankrupt, without the consent or knowledge of the as-signee, and before he had the actual possession of such note, he may after-wards ratify the act, and proceed to judgment in the same manner as if the suit had been originally commenced by his direction.</p> <p>A note made payable to a bankrupt, after petition filed, and before the decree, passed to the assignee by operation of law, as a part of the bankrupt’s effects.</p>

Assumpsit upon a promissory note. Trial before Shepley C. J. It was one of several notes given for land and secured by a mortgage.

<p>Where {he general partner, (in a special partnership subsisting and conducted in his name,) makes a general assignment of his property for the benefit of creditors, without using any words to show that the partnership property was intended to be assigned, the partnership property is not thereby transferred.</p> <p>In such case, one, who takes the partnership property by purchase from the assignee, cannot hold it as against the creditors of the copartners.</p>

<p>If, pending a suit in which land had been attached, the plaintiff assign the demand for value, the equitable estate, after the levy, is in the assignee, as a resulting trust.</p> <p>In the making of such a levy, if the assignment be stated in the appraisers’ certificate, such statement is notice of the trust to any attaching creditor of the assignor.</p> <p>Whether such creditor, without notice, actual or implied, could, by levying the land as the property of the assignor, hold it discharged of the trust; qumre.</p> <p>But with such notice, he could hold only subject to the trust, and could not maintain a writ of entry against the grantees of the cestui que trust.</p>

<p>A deposition was taken by defendant, after the service but before the entry of the writ. The justice, in the caption, certified notice upon “ G. B. M. the plaintiff's attorney.” The only indorsement upon the writ was, “ from G. B. M’s office,” in the handwriting of G. B. M., who afterward entered the action and appeared as the plaintiff’s attorney in Court.</p> <p>Held, the deposition was properly rejected.</p>

Award of referees. The parties entered into a submission to referees before a justice of the peace, according to Rev. Stat. ch. 138, and agreed in writing, “ that the report of the referees shall be made to the Supreme Judicial Court, instead of the District Court, as named in the rule” of submission. The award, (which was in favor of the plaintiff,) was presented to, and accepted by the Supreme Judicial Court, Whitman C. J. presiding. The defendants excepted.

<p>An officer is liable for taking an insufficient replevin bond, if the only surety never resided in this State.</p>

<p>An action, commenced before a justice of the peace, cannot be brought into this Court by an appeal from the District Court.</p>

<p>The drawee of an order of $55 paid 34,75, and indorsed upon it that the payee had received that sum, “ it being ail that the drawee agrees to pay, unless the drawer intended the order to be exclusive of $20,25 which the drawee had previously paid without order.” It was afterwards ascertained tiiat tlie drawer intended the whole $55 should be paid by the drawee, of which the drawee was notified by a new request from the drawer.</p> <p>Held, the drawee was liable for the balance.</p>

<p>Where one transfers a note and, at the same time, guarantees its payment, the consideration for the transfer is a sufficient consideration for the guaranty.</p> <p>It is not necessary that a contract should contain a statement of its consideration.</p> <p>A guaranty to pay a note after the guarantee has obtained execution, if it cannot be collected of the maker, is valid, although the execution be obtained in the name of an indorsee of the guarantee. In such a case the guarantor before suit against him, is not entitled to notice that the note could not be collected of the maker. A guarantor is not discharged by the laches of the guarantee, unless he has thereby suffered some loss or injury.</p>

This was an indictment against Benjamin D. Ricker in two counts.

<p>Agreed statement of facts in the District Court, Aleen J. Judgment was there rendered for plaintiff. Defendant appealed.</p> <p>The principal defendant was summoned as trustee of Hutch inson, and defaulted, and the judgment paid and satisfied. The defendants offered to be defaulted for all but the amount paid as trustee. Where there is a joint debt, either debtor may pay, and here is payment by one; and it is immaterial how received, as the plaintiff has received so much. If Eddy’s indebtedness as trustee was on account of any other debt due Hutchinson, the plaintiff could show it; but the defendants cannot show that there is no other debt. The writ says Hutchinson had deposited a sum in the hands of Eddy as trustee. Every indebtedness is a several one, although more than one is liable. A payment by one, is a payment by all. The cases cited from New Hampshire decisions are not law here. The testimony of Turner that he received the debt, and the indorsement of the attorney on the execution as to costs, is evidence of payment. This evidence would bar an action on the judgment. Payment of a judgment may be proved in any way.</p>

<p>Whether certain words, spoken by the mortgagee to the mortgagor of personal property, conveyed authority to sell the property, is a question for the jury and not for the Court; and where the jury were instructed that if the words used were “sell the horse and pay me,” the power to sell was given, it was held to be erroneous, it being the province of the jury to find not only the words used, hut the meaning of them.</p> <p>The words used were but evidence. Whether that evidence proved the authorization, was a question, not of law for the Court, but of fact for the j«ry-</p>

<p>Where it was made a condition of a policy of insurance, that in case of loss, « the assured shall, if required, submit to an examination under oath by the agent or attorney of the company, and answer all questions touching their knowledge of any thing relating to such loss or damage, or to their claim therefor, and subscribe such examination, the same being reduced to writing;1’ if such examination be once made and completed, the assured cannot be required by the company to submit to a further examination under oath, afterwards, although at the time of making the oath he may have assented to a further and future examination.</p> <p>Where in a policy insuring a stock of dry goods, it is provided that the policy shall be void, if ic the risk shall be increased by any means whatsoever within the control of the assured, or if such building or premises shall, with the assent of the assured, be occupied in any way so as to render the risk more hazardous than at the time of insuring;” and among the articles denominated hazardous is cotton in bales ; — yet if cotton in bales is merely kept for sale as a part of the stock of dry goods, it does not vitiate the policy, unless the jury should find that the keeping of such cotton increases the risk.</p> <p>Where in a policy upon a store and stock of dry goods, one of the conditions protected the insurers against the appropriating, applying or using the store for keeping or storing goods of a hazardous character,— held, that the keeping of a hazardous article for sale among the other goods was not an infraction of that condition. Such a condition is merely a protection against appropriating the store for a depository of such goods, as a sole or principal business.</p> <p>The affidavit of the assured, made in pursuance of the requirement of the policy, and his examination before the company’s agent, after being introduced into Court without objection, are proper evidence for the consideration of the jury as to the amount of the loss.</p> <p>The fact that the assured in his affidavit estimated the value of the goods consumed, at $2800, and the jury returned a verdict for $1853 only, is not such evidence of fraud and false swearing, as would justify the Court in granting a new trial.</p>

<p>This suit was on a promissory note made March 5, 1841, by defendants to plaintiff for $400, payable in one year with interest. The defence was usury, to be proved by the oaths of the makers. The trial was before Shepley C. J.</p> <p>The defendants testified that they received but $352 of the plaintiff when the note was made, the balance, $48, being allowed for 12 per cent, interest in advance; that about the expiration of the year, they obtained delay, and paid $38, of which only $14 were indorsed ; and that on March 7, 1843, they paid $58,60, of which $34,60 were indorsed, which paid the interest for one year in advance, $ 10 for deficiency of interest paid the year before, and 60 cents interest on that sum.</p> <p>The plaintiff testified that all which he ever received on account of the note in any manner had been indorsed, three sums of $24 each, having been indorsed on the note since the commencement of this suit by his direction ; that the defendants said the $24 was a present, but the indorsements include all sums received as present or interest. Thereupon the defendants submitted to a default.</p> <p>The case was brought into this Court by demurrer, and the indorsements of the illegal interest were made since the case came into this Court.</p> <p>The Court is to cause the proper judgment to be entered, or grant a new trial if necessary.</p> <p>Both parties say on oath, that 12 per cent, interest was agreed for. The excess is void by c. 69, § 3. By indorsing a part of this excess, the plaintiff affirms the 12 per cent. The plaintiff should not be allowed to alter the state of things as it was in the District Court. If the law will allow the alteration of claim, the statute against usury becomes a dead letter. In assumpsit, the plaintiff cannot alter his bill of. particulars. Babcock v. Thompson, 3 Pick. 446 ; Varnum v. Bissell, 14 Pick. 191. The statute against usury is penal, and is not to be evaded. Warren v. Coombs, 20 Maine R. 139. The Court would not allow the indorsement to be made after the evidence is all out, and the case is ready for the jury. Neither should it be made in the office of the plaintiff’s counsel, as in this case. Indorsements made after suit brought are nullities.</p>

<p>If a person who is a constable, appoint one of the justices of the quorum to hear a poor debtor’s disclosure of his property affairs, the proceedings of the justice will be invalid, unless it be shown, that, in making the appointment, such person acted in his capacity of constable.</p>

<p>In local actions, if the venue he in the wrong county, and the objection appear on the record, it should be taken advantage of on demurrer. After pleading to the merits, and after verdict, it is too late to raise the objection.</p> <p>By a default, the declaration is to be taken as true, and regarded the same as it would have been if a verdict had been taken.</p> <p>A receipt not under seal, cannot be regarded as a release of the covenants in a deed which is not apparently referred to in the receipt; for “ covenant by deed must be discharged by deed.”</p> <p>When an amendment has been properly made, and is for the same cause of action originally embraced in the writ, the amended writ is treated as it would have been if so made when the suit was commenced, notwithstanding the amendment was not filed till the action would have been barred by the statute of limitations.</p>

Wbit oe entre. Trial before Shepley C. J. The full ink lines upon the accompanying diagram, are a transcript of Weston’s plan made of the township in 1797. The dotted line and the letters A and B are put in by the reporter merely for illustration. The demandant established title to lot No. 10, in first range according to Weston’s plan. The tenant established title to lot No. 8, in 2d range, according to Weston’s survey.

Trover to recover for a shingle machine, tub-wheel, shafts and gearing appertaining thereto. Trial before Sheplet J. The plaintiff, Corliss, Aug. 25, 1835, mortgaged a mill and privilege in Carmel, to William Moulton, which mortgage was foreclosed March 17, 1840. Pending the mortgage, the plaintiff enlarged the mill, and put in the shingle machine and apparatus sued for. McLagin, one of the defendants, for several years rented the shingle machine and gearing of the plantiff.

Exceptions irom the District Court, Goodenow J. The action was assumpsit on account annexed, in which the defendants were charged for 96 days work at $1,25 a day, amounting to $120, and on which was credited the sum of $26, leaving a balance of $ 94.

<p>Where a deed of a tract of land bounds it “ partly on a stream, as the said lot was surveyed by L. L. Esq. reference being had to the plan,” and the plan shows a straight line drawn along the stream pursuing its general course, but crossing the stream at a curvature, and taking in a piece of land on the other side within the curvature; and the lines named in the deed do not entirely surround the tract; but by substituting the straight line instead of the stream the tract is surrounded, the straight line must be regarded as the true boundary, and the land on the other side of the stream between the curvature and the straight line is embraced in the deed.</p>

Assumpsit on account annexed. General issue pleaded. The plaintiffs were chartered with authority to boom lumber and receive toll therefor, at the rate of 38 cents per thousand feet. This action was for driving and booming logs. The defendants objected that the driving of lumber was not authorized by the plaintiffs’ charter. This objection was sustained by the Court, Wells, J. The plaintiffs then moved to withdraw the charge for driving.

Writ op entky. Tiial before Shepley, J. The general issue was pleaded with claim for betterments. The verdict was for the demandant. The jury having allowed the betterments, and fixed the amount thereof, the questions considered by the Court related only to the title. All the deeds under which the demandant claims were made while the grantors were disseized. Such deeds could convey nothing. The R. S. c. 91, $ 1, cannot aid him. It was wholly prospective.

Assumpsit on a note payable to the Lafayette Bank. By a vote of the stockholders, the plaintiffs were appointed trustees of all the property belonging to the bank, in trust for the benefit of the stockholders individually, in proportion to their respective numbers of shares in the stock; and the president was authorized to assign to said tiustees all the notes belonging to the bank. Joseph C. Stevens, acting as president, indorsed the note in suit.

<p>Where one of two partners has assigned his interest in the partnership effects to his co-partner to secure the latter for debts due him from the former, but remains liable for the debts of the firm, and entitled to his shave of any surplus, his declarations are evidence against the firm, in an action in the name of the partnership, brought for the benefit of the assignee alone.</p> <p>In such a suit, the partnership book, containing charges made against one of the partners, for moneys paid by him upon his private debts, is receivable in evidence for the defendant, to prove that the other partner must have known of such payments, although some other payments may have been made, which were not entered on the book.</p>

This was a petition ior partition. The petitioner claimed an undivided half of a tract of the land. The respondent pleaded sole seizin in himself. Francis Butler, deceased, was formerly the owner. Both parties claimed title under him. The petitioner claimed under a levy made in 1839, on an undivided half of the premises on a judgment against Philip H. Coombs and another, and duly recorded. He produced also a deed from Henry Johnson to P. II.

<p>Covenant broken, to recover for breach of the covenants of a deed executed to the plaintiff, by Samuel Lowder as attorney for Benjamin Bussey, the defendant’s intestate. The opinion of the Court states the facts in evidence and the rulings of Whitman, C. J., before whom the action was tried, to which rulings the plaintiff excepted.</p>

<p>Action of debt on a judgment. The case was tried in the District Court, Allen, J. presiding. The defendant offered a certificate of discharge in bankruptcy, and the plaintiff charged a fraudulent concealment by the defendant, and offered testimony from which it appeared, that in 1830, defendant entered upon unimproved land, belonging to one Houlton, and erected buildings and made improvements to the value of $ 1000 or $1300; that he resided on the same until 1841, calling it his own and paying the taxes; that in 1841, Houlton conveyed it to Putnam & Co. for $1300, for which they gave their note to said Houlton; that Putnam & Co. conveyed the same to one Doyle for $1000, of which $300 was paid in a claim Doyle held against defendant due prior to his proceedings in bankruptcy, without objection of the defendant, and the balance was accounted for by Putnam to defendant; that in 1844, Putnam & Co. received from Houlton their note of <¡>1300, without any consideration being given therefor.</p> <p>The defendant did not place the land or the notes, or any interest in the same, among the assets in his schedule in bankruptcy.</p> <p>From the testimony of Samuel Houlton, it appeared that he owned the land when defendant moved on to it, and owned it with the improvements when he sold it to the Putnams; that defendant never had any interest therein; that he never agreed with the defendant to hold the same for his benefit, and convey it to him on his request; that defendant had no interest in the notes for $1300, and received no benefit from them. He stated that defendant was his agent and erected the buildings and made the improvements out of materials furnished by him, the witness, and that he had accounted to the defendant for the same. Defendant never bought and never agreed to buy the premises of him.</p> <p>The plaintiff offered evidence to show that defendant participated in negotiating the sale to the Putnams, and that it was understood between the defendant and Houlton, that said Houlton held the premises and the notes received therefor, for the use of the defendant. He offered no evidence of a deed, agreement or writing of any kind from said Houlton in relation thereto, or to said notes. There was evidence showing that a note, due from defendant, had been paid from the proceeds of the property since he had obtained his certificate. There was also testimony on the part of defendant going to show that Putnam & Co. had accounted to Houlton for the $ 1300 note.</p> <p>The defendant requested the Court to instruct the jury, that, if the defendant had no title or claim to the land or notes be-forementioned, and no interest therein which he or his assignee in bankruptcy could recover in any action or process at law, or in equity, and the jury were satisfied from the evidence, that such was the fact; then he was not bound to state any thing in relation thereto, in his schedule in bankruptcy; and the omission would not be sufficient to impeach his certificate of discharge, unless he had voluntarily deprived himself of such title, claim or interest for the purpose of defrauding his creditors, or in fraud of the bankrupt act.</p> <p>This instruction the Court declined to give, but among other things did instruct the jury, that one question for them to determine was, whether the defendant at the time had any claim or equitable interest in the notes given by Putnam to Houlton, for the land, and in the determination of that question, they would consider what interest, if any, defendant had in the land conveyed to Putnam ; that although the title, till conveyed to said Putnam, remained in Houlton, yet if the defendant had paid him money or its equivalent for the land, a trust would result to defendant; that if he had such interest in the land, he would also have an interest in the notes given for the same ; and if, on the whole testimony, the jury believed that defendant was equitably entitled to the whole or a part of the money due on said notes, although there was no written contract or declaration of trust between Houlton and defendant, it was the duty of defendant to include it in his schedule of assets in bankruptcy ; that if its omission was designed, it would be such a concealment as would render the certificate of discharge void and of no effect.</p> <p>The jury found a verdict for plaintiff. Defendant filed exceptions.</p> <p>contended that there was no fraud which could avoid the certificate.</p> <p>Defendant had no legal title to the land. The title had passed to bona fide purchasers a year before he made his application.</p> <p>Defendant had no interest in the proceeds of that land, or in the note. And if he ever had any interest in it, he certainly had none at the time of making his schedule ; for then, by the plaintiff’s own showing, the note had been already paid. The note was paid in 1841, though it was not given up till 1844.</p> <p>The instructions requested by defendant, should have been given. The facts warranted and required it. There was no agreement or understanding of any kind, between Houlton and defendant, that defendant should have any interest in the land; but Houlton made the deed to Putnam, and took to himself the note for the consideration. This state of facts required substantially the instructions asked for.</p> <p>The instructions given were erroneous, calculated to mislead the jury, and uncalled for by the evidence.</p> <p>The Judge instructed the jury “ that one question for them to determine was, whether defendant, at the time, had any equitable interest in the note from Putnam to Houlton.” Now whether defendant had or not an interest in the note, it had been paid and was due four months before defendant’s application in bankruptcy.</p> <p>The Court further instructed the jury, “ that although the title, till conveyed to said Putnam, remained in said Houlton, yet, if defendant had paid him money or its equivalent for the land, a trust would result to the defendant.” It could not be an express trust, for there is no written declaration or evidence of such trust. It is not an implied or resulting trust. “ To raise a resulting trust, by implication of law, in favor of one who pays the purchase money, the payment must be a part of the original transaction; the trust cannot arise from subsequent payments.” Buck v. Pike, 2 Fairf. 1.</p> <p>It is not even pretended that there was a payment by defendant to Houlton, at the time of the original transaction. There was no deed till ten years after defendant entered on the land, and no deed at all from Houlton to any one, for the use of defendant. So also there could be no trust growing out of any claim for betterments, defendant holding in submission to Houlton.</p> <p>Defendant had an interest in the land or the note given for it. It is not contended that Houlton could have been compelled by defendant to give him a deed ; but on refusal, he would have been liable to defendant for money expended. 5 Mass. R. 137; 14 Mass. R. 68; 16 Mass. R. 162; 6 Mass. R. 394; 7 Mete. 62 and 447.</p> <p>A trust would result to defendant for the notes or the land. 10 N. H. R. 117 ; 4 Kent, 306 ; 3 Johns. R. 216 ; 3 Mason, 364.</p> <p>Houlton received pay for the land in 1830, or never received any; as he gave up in 1844 the note received in 1841, on Putnam’s accounting to defendant for consideration for the purchase.</p> <p>Defendant says the note was paid in 1841. No such point was made at the trial, nor does it appear as a fact in the case. Houlton was present and testified, and must have known, but he did not state any such fact.</p>

<p>Though a conveyance of land by A be fraudulent and therefore void as to his creditors, and notes be taken therefor, secured by a mortgage of the same land, the assignee of the mortgagor is entitled to redeem, as against any holder of the mortgage not claiming as a creditor of A, or standing in a relation which would entitle him to such an objection as a creditor might make.</p> <p>In such a case, (except as to creditors or parties having the rights of creditors of A,) the notes and mortgage are valid in the hands of one to whom they have been indorsed and assigned without knowledge of the fraud.</p> <p>But if he took the notes when overdue, they are subject to equities to the same extent as if not secured by mortgage.</p>

• This was an action of assumpsit to recover the balance of an account, and was tried at the last term before Whitman, C. J. The plaintiffs moved for leave to amend, by striking out of the account annexed all the items of debt and credit, except the last four items, which were for a bill of merchandise and the expenses attending it. The motion was resisted, but allowed by the Judge.

Writ of entry to recover possession of that portion of lot numbered 52, in Dennysville, between the shore and the centre of Dennys river. The plaintiff claimed title by conveyance from one Russel, which embraced lot numbered 52, according to the plan of Dennysville by Benj. R. Jones.

A writ of entry. The facts in this case sufficiently appear in the opinion of the Court. Wells, J. gave a dissenting opinion which has not come into the hands of the Reporter.

<p>This was an action brought upon a note of hand, of this tenor. “ Boston, May 18, 1837. Six months from date, value received, I promise to pay to the order of Joseph Whitney, three thousand three hundred and seventy-eight dollars and sixty cents. Luther C. White”, and indorsed by the defendant.</p> <p>At the trial before Tenney, J. the plaintiff showed by Charles Hayward, a notary public, that at the maturity of said note he demanded payment of the same of the maker, at the Commonwealth Bank in Boston, where the same was lodged for collection, and notice of the dishonor of the same on that day was given to the indorser, through the postoffice, directed to him at Calais, Me. It was admitted that the notice to indorser was conformable to law.</p> <p>The plaintiff also proved by the messenger of the Commonwealth Bank in the fall of 1837, that he had charge of the collection paper left at said bank for collection, and that said note was left in said bank for collection, and that, from a week to ten days before the note fell due, notice was given to White, the maker, through the postoffice, directed to Calais, Me., where White at that time lived, informing him where the note was, and that it was left in said bank for collection. Also that when the note fell due, demand was made upon White, through the postoffice, directed to Calais, Me.</p> <p>The plaintiff' showed by one Bela Keating a general usage of the banks in Boston as to demand and notice, and among other things, that it was the custom of the Boston banks, when a note is dated at Boston, and the maker and indorser live out of the State, and it is payable at no definite place, to notify the maker that the note is at the bank, where it may be, for collection, a reasonable time before it becomes due; that if it is unpaid at maturity or the last day of grace, it is delivered to a notary, to be protested, who notifies all the parties of the non-payment of the note on the same day; that he never knew of any other usage of the banks in Boston, in relation to such paper; that the notices are sent by mail, and the notary, on the day the note becomes due, presents it at the bank, to some officer of the bank, and demands payment; and this is done at the bank at which the maker has been notified that the note is left. It also appeared by this witness, that he had been a collecting clerk in a Boston bank for twelve years heretofore, and a merchant since, and had had the notes of Whitney, which had been lodged at the banks for collection.</p> <p>It also appeared by ,the deposition of Mark Healy, that he had long been a director of a Boston bank, and president of the Merchants’ bank, and was acquainted with the usages of the Boston banks, and he with another witness generally confirmed the other testimony as to the usage.</p> <p>The plaintiff also proved by the deposition of II. N. Crane, that he deposited the note in suit, in the said bank for collection, and particularly requested the messenger to notify the maker where the note was, and that the maker wrote back that he should not be able to pay the note at maturity, and wished an extension.</p> <p>To show the knowlege of defendant of said usage, the plaintiff introduced three notes of hand, for large amounts, and one draft and acceptance, which were lodged in the North bank, Boston, for collection, and which afterward became the property of said bank, and which were put in suit in this county, and the defendant defaulted. On one of said notes, said Whitney was indorser, and also upon the draft. The plaintiff also showed that the defendant had long been engaged in business as a merchant in Calais, and had drawn many drafts on persons in Boston, and had had notes frequently at the different banks in Boston, and was frequently there.</p> <p>It also appeared that the maker of the note had been a director in the Calais bank five years, and had indorsed notes and drafts, payable at Boston, for defendant and others. Upon this evidence, the plaintiff’s counsel contended: —</p> <p>1. That as the note was dated at Boston, and White, the maker, was informed where the note was left and to be found, before its maturity, and had notified the holder, that he could not pay it at maturity, and wished an extension of the same, the same having been given for goods purchased by the maker in Boston; that there was evidence from which the jury might presume, that by the understanding and agreement of the parties, at least on the part of White, that the note was to be paid io Boston.. But the presiding Judge, would not allow the counsel for plaintiff to urge such evidence upon the jury.</p> <p>2. The plaintiff’s counsel contended, that, as the evidence proved that the maker of said note could not pay it at maturity, and had so informed the holder, it became unnecessary to make a demand upon the maker at Calais, in order to charge the indorser; that the note was dishonored if not paid at maturity, and the maker had no right to refuse payment at the bank when he had been informed where the note was, and when he had made no objections to such place of payment, and that it was sufficient under such circumstances, if the note was left in a bank in Boston, and notice given on the last day of grace to the indorser, of the demand at the bank, and that the note was not paid, and that the holder looked to him for payment, and this irrespective of any usage of the banks of Boston, variant from the law merchant to bind the indorser, but the Judge ruled otherwise.</p> <p>3. The plaintiff’s counsel contended, that if from the facts and circumstances of the case, it appeared that the maker of the note had such demand made upon him as to cause a dishonor of said note, according to the usage of the Boston banks, and notice was given to the indorser in due season, that although White & Whitney were unacquainted with the usage, yet the indorser would be liable, but the Judge ruled otherwise.</p> <p>The plaintiff’s counsel further contended and requested the Judge to instruct the jury, that if they found such a general usage of the banks in Boston, as had been testified to, and White & Whitney were acquainted with that usage, or either of them, and that demand and notice has been made and given in conformity therewith, the indorser would be liable in this action, but the Judge refused to give such instruction.</p> <p>In summing up, the presiding Judge charged the jury, that if it was proved to them that there was a custom of the Commonwealth Bank existing before and on Nov. 21, 1837, (the time this note was at maturity) when a note was left there for collection, the parties to which lived out of the city, to notify and make demand as had been done here, and White & Whitney were acquainted with such custom, or either of them, the indor-ser would be liable ; but that a general custom of the banks of Boston, if found to exist at or before said time, and that White &f Whitney, or either of them, were acquainted with such usage, would not be sufficient to hold the indorser.</p> <p>The jury returned a verdict for the defendant, and also to a question submitted to them by the Court, whether there was any such usage as testified to in the Commonwealth Bank, answered that it did not exist.</p> <p>And exceptions were taken to the rulings in the trial.</p> <p>There are cases, where no demand need be made upon the maker of a note to bind the indorser; as where he has fully secured himself from loss, or where the note is payable at a bank; and the maker of a note may agree to waive a demand upon him, or that the demand may be made at a particular place other than his place of business or residence ; or from usage at the bank, where the note is discounted or left for collection, he being shown to be acquainted with that usage, he will be considered as waiving a condition implied by law in his favor, if a demand is made upon him in accordance with such usage, and in these cases an indorser will be held liable to pay, if he has notice in due time. And if the maker of a note make a payment on the day the note falls due, this would be evidence of presentment on the day it was due. 20 Maine, 98.</p> <p>From this it appears that it is immaterial to the indorser in what form the demand was made upon the maker, if seasonable notice of the non-payment of the note was given to him. 17 Mass. 449.</p> <p>Do not the facts in this case show a waiver on the part of White as to a demand on him at Calais ? And why might not a jury infer from them, the understanding of White, that the note was to be paid in Boston ? Why was the counsel refused this ? Suppose WThite, at the time the note was given, had agreed with the holders that they need not send the note to Calais to make demand upon him when due, but that he would pay it at the Commonwealth Bank, if left there. It is not easy to see why this would not have been binding in law, and also a waiver of a demand at Calais, and such a demand as the maker would be bound by. Then why might not the plaintiff have urged such evidences of waiver upon the jury ? Surely if White had no right to refuse payment in Boston and at the bank, then the demand and notice were sufficient, else the law as laid down in the case last cited is not sound. But the principles of that case are cited and commended in 18 Maine, 99.</p> <p>But I pass to the second and most material point of this case. There was evidence before the jury of a general usage of the banks in Boston to demand and give notice as was done in this case, and also tending to show that White and Whitney were acquainted with it before and at the time the note fell due. The instructions requested on this branch of the case ought not to have been withheld. Bills of exchange and notes of hand are creatures of usage, and the laws regulating the rights of the parties have grown up and been adopted from usage.</p> <p>Here were White and Whitney, both merchants, and doing large mercantile business, and much of it in Boston, and having many notes and bills and drafts at the banks there, and left for collection. Why should they not know the general usage of the banks upon such a case, and be bound by it, as well as a person living in Boston ? It is well settled, that a demand upon one resident in a city, without the note, and on the first day of grace, will be sufficient to hold the indorser, accustomed to do business at the bank. 18 Maine, 99. It was not shown that White or Whitney were accustomed to do business at the Commonwealth bank ; but we showed the invariable usage of all the banks in Boston respecting notes like the one in question, and evidence was adduced tending strongly to show the knowledge of both parties to the note. The mode adopted here to charge the indorser was the mode adopted by all the banks in Boston, and no exceptions were known. One would have supposed, when the usage was shown of the kind named, and that the parties were acquainted with it, and the objection coming up, that it was not shown that such was the usage of the Commonwealth bank before and at the time, &c. and the parties acquainted with it; that the presiding Judge would have given quite a different direction to the cause, than was given and that he would have charged the jury, that “ if they believed such was the general usage of Boston banks, from the evidence, they might judge whether or not such was not the usage at the Commonwealth bank, before and at the time the note became due, as the usage embraced all the banks in Boston.”</p> <p>We showed a general usage of a particular place, regulating the trade and business in this particular, and binding upon all acquainted with it. The finding of the jury as to the Commonwealth bank, was in consequence of the erroneous instruction of the Judge.</p>

This was an action for trespass upon certain lots in townships numbered six and seven in the county of Washington. The writ was dated in April, 1845.

This was an action of assumpsit. And it came before the Court, upon a statement of facts, from which it appeared that the plaintiff was a citizen of this State, and performed labor for one Duncan Barber, upon his mills situated in the British Province of New Brunswick.

This was an action of assumpsit, commenced in February, 1846, by the plaintiff, who lived in the Province of New Brunswick, against the defendant, who had resided for the last ten or eleven years in this State. It was upon the following writing : — “ Due John McMillan the sum of twenty-three pounds, ten shillings and five pence, as settled this day. “ Buctouche, Oct. 3, 1836.

<p>This was an action of indebitatus assumpsit, and came before the Court on a statement of facts. The action was to recover a balance of account of $55,07. Of the bill of particulars filed embracing plaintiff’s whole account of $112,63, there was one item : “ cash paid S. H. Hitchings, Esq. $57,88.”</p> <p>In March, 1845, about two years before the commencement of this action, the defendant employed one Hamilton to do some business for him, and requested him to settle his account with the plaintiff. Hamilton then went as the agent of defendant to settle with Todd, taking with him defendant’s account to the amount of $34,94 and two other items, viz : — “Amount paid by Luflin, $6,50,” and “William Todd, Sen. account, $16,12,” making the whole of Tobey’s account against Todd $57,56. The settlement was made in this manner; upon Tobey’s bill against Todd, the amount of Todd’s account against Tobey, including the item aforesaid “cash paid Hitch-ings $57,88,” and being $112,63, was entered to the credit of Todd thus : —</p> <p>“ Supra Credit.</p> <p>By amount your account $ 112,63</p> <p>And said Tobey’s bill against Todd was balanced by adding to its amount $57,56</p> <p>The balance of Todd’s bill against defendant, thus : — New account $55,07 $112,63</p> <p>And Hamilton signed the same thus : — E. E. settled, St. Stephen, March 21, 1845,</p> <p>“ W. H. Tobey,</p> <p>“ By Asa Hamilton.”</p> <p>Hamilton exhibited a copy of this settlement to defendant, who observed, “ it takes them to figure,” but made no objections to the settlement. Hamilton called his attention to the item “paid Hitchings,” and defendant said, “I expected they would likely charge that to me.”</p> <p>The item “ cash paid Hitchings $57,88,” originated in this way. Sometime in the spring of 1844, one Haycock of St. Stephen obtained a quantity of medicines of one Hale in Boston upon a letter of credit, signed by the plaintiff, one R. M. Todd and others. Sometime afterward the defendant consulted with R. M. Todd about buying out Haycock’s stock of medicines, and after this, defendant informed him that he had purchased it, and had assumed to pay the debt due Hale, on that letter of credit. Soon after this purchase, the guarantors were called on to pay the debt due Hale. R. M. Todd spoke of it to defendant, who replied “give yourself no trouble, I will see the debt is settled.” Early in the summer of 1844, Hale sent his demand against Haycock, with said letter of credit, to one Hitchings of St. Stephen, an attorney, for collection. Hitchings called on the guarantors, who referred him to defendant and R. M. Todd. The defendant told Hitch-ings it belonged to him to pay, and that he had promised Haycock to pay it. That he bought Haycock’s stock and had agreed to pay this demand of Hale, and that it should be done as soon as he could make some collections. The defendant failed to pay and the plaintiff paid Hitchings his own proportion of the claim in Oct. 1844, being $57,88, and the same amount for R. M. Todd.</p> <p>Subsequently, the defendant promised R. M. Todd to pay Hale’s demand. There was not in the case any evidence of any direct promise, verbal or written, by the defendant to the plaintiff to pay him this item or any portion of Hale’s demand, unless it may be inferred from the facts herein stated.</p> <p>The principal objection to this action is, that the promise to pay Haycock was not in writing, and so within the statute of frauds. We say it was a promise to pay his own debt, for he received the medicines for which the debt was contracted. If it is said, that ho cannot be made liable to the guarantors it is an answer, that they paid for the benefit of the defendant, and therefore the claim is as strong against him. If it is objected that it was not paid by request of defendant, it is sufficient to say, that the law will imply a request to pay, when the party is so situated that he must pay.</p> <p>But should this view not be sustained, then we say, that the defendant, by his own agreement made by his agent, has allowed this claim of the plaintiff, in writing, and made it the basis of a new account. The agent had the previous authority to settle, and his acts were subsequently approved by the defendant. 17 Mass. 404 and 579; 7 Greenl. 361.</p> <p>The statute of frauds is a good defence. There was no promise in writing to pay the demand of Haycock to Hale. No case carries the exception to the rule so far as to include this case. Furthermore, there is no proof of any consideration, and consideration is necessary where promise is not in writing. Chitty on Cont. 465, 466, 467, 468 ; 5 Greenl. 81.</p> <p>When Haycock died, it was a matter between Hale and Haycock’s representative, and the plaintiff can be in no better position than Hale, and he could enforce only to the extent of the fund.</p> <p>Again, there was no privity of contract between these parties.</p> <p>It is said that the settlement is a promise in writing. But the agent had no authority to make a promise, and if he did, this is one of the errors which is guarded against in the paper purporting to be a settlement. There does not appear to have been a ratification, such as to bind the defendant.</p> <p>If there was any promise to pay, such as the law will recognize, it was to the guarantors jointly, and all should have been joined in the suit. 8 Cowen, 168; 2U. S. Dig. <§> 1, art. 16 and 21.</p>

Replevin for a quantity of hides. The action was referred, and the referee awarded that the plaintiff become nonsuit, unless upon the evidence before him the Court should be of opinion that the action could be maintained. The plaintiff introduced a paper of which the following is a copy. “Boston, Nov. 27, 1844.

This was an action for words spoken slanderously of plaintiff’s wife, and was tried at the last term of the Court, before Shepley, J., upon the general issue. From tho testimony of Geo. Held: that if the author was given of the slanderous words, it would be a justification. Recently the defendant has been held to a little further than that, but not further than the case here presented.

This was an action of the case for words spoken of one of the plaintiffs. Held: that words actionable will sustain an action, when spoken in jest. Provocation is no justification, but can only go in mitigation of damages. 2 Greenl. Ev. § 275. argued, that when the words were spoken in such manner as to lead to the conclusion, that they were not spoken in truth, they were not actionable. Starkie on Slander, 28.

<p>This was an action upon a note of hand, given under these circumstances. Defendant was committed to the county jail for non-payment of a fine and costs to which he was sentenced by the District Court. After lying in jail thirty days, he. was liberated from imprisonment by the sheriff, upon giving the note in suit for the amount of said fine and costs. The defendant neither made nor signed any schedule of any property by him owned ; nor did he take or sign any oath whatever. Upon these facts, it was agreed that the Court might order a nonsuit, or default.</p> <p>1. The note is void at common law for illegality in the consideration. 1 Comyn’s Contracts, part 1, chap. 3, pages 26, 30, 34, 35; 4 Mass. 370; 5 Mass. 385 ; 22 Maine, 488, and authorities there cited.</p> <p>2. It is also void for illegality of consideration, by Stat. of 1821, chap. 110, 12.</p> <p>3. As between the parties, there was no consideration, for, the discharge being illegal, defendant is liable to be re-committed.</p> <p>Plaintiff can derive no benefit from the statute, because defendant did not perform the conditions required, to authorize his discharge.</p> <p>By Stat. of 1821, chap. 83, § 2, a prisoner may be discharged by order of Court, on certain conditions, and by Stat. of 1822, chap. 190, <§> 2, the same power was transferred to the sheriffs on the same conditions. The case finds those conditions were not fulfilled.</p> <p>If the sheriff authorized his liberation, it should appear by the record. Stat. of 1821, chap. 110, § 2.</p> <p>It was the obvious intent of the Statute, that the prisoner should substantially disclose, and take the poor debtor’s oath, to entitle him to his discharge, and it would be of pernicious example to give validity to a contract made in violation of the same, and setting the statute at defiance.</p>

This was an action of assumpsit for wages as a mariner on board defendant’s vessel, of which Billings P. Hardy was master. Joseph P. Hardy, one of the defendants, was defaulted. It appeared that three quarters of the schooner were owned by Joseph P. Hardy, and the other quarter by the defendant; that the master, while he was sailing the vessel by the month, hired the plaintiff on the credit of the owners.

Assumpsit on a note of hand made by defendant to Edward Fernald, and payable to him or bearer on demand, and by said Fernald transferred.

Debt on Judgment. An execution had issued. The cost part of judgment was satisfied by a sale of personal property. The defence was, that as to the debt part, the execution had been satisfied by a levy of the defendant’s land. The levy was regularly and legally made in full satisfaction of the execution, except in the proceedings relative to the delivery of seizin.

<p>Under the R. S. c. 134, § 33, a levy of real estate, made upon a judgment in a suit, wherein the declaration contained only a common money count and a count upon an account annexed, which account merely charged, balance due on an account and interest, is invalid as against a prior conveyance, although the party claiming under the levy offered to prove that the said conveyance was fraudulent and void.</p> <p>Neither is the levy aided by a paper, in the form of a bill of particulars, not attached to the writ, though placed and continued within its folds. — Per Wells, J.</p> <p>Such an infolding of the paper is not an “ annexation” within the statute, which authorizes a specification to be annexed. — Per Wells, J.</p> <p>The title of a purchaser will not be affected by proof that he knew of. a prior attachment, if that attachment be made invalid by the statute. — Per Wells, J.</p> <p>Note. — Howard, J. had been consulted in this case, and therefore took no part in its decision.</p>

The bill alleges that David L. Hobbs was indebted to the plaintiff, upon a contract made in 1833 ; that he brought suit upon said contract against said David, and attached a certain farm in Parsonsfield, in February, 1841. That in said suit, he recovered judgment in 1847, for $2579 damage and $49,59 costs; that within thirty days, he caused said farm to be levied and set off to him upon the execution issued on said judgment.

Replevin. The defendant, who is a deputy sheriff, pleads the general issue, and also by brief statement, that the property was in Isaac Dyer. . Isaac Dyer had long occupied a farm, adjoining the Saco river. The plaintiffs, who are his sons, purchased the farm and gave a lease of it to their father. This is an action of replevin for some slab-wood, which had been found floating down' the river, and had been hauled out upon that farm, and also for a cow.

This libel for a divorce was filed 8th March, 1849. ft alleges that the parties were intermarried on the 7th Dec. 1848, and resided at the libelant’s house in Limerick until the 23d of the same December.

<p>This is an action of trespass quare clausum, and the following are the facts agreed. The plaintiff’s close is a tract of salt marsh ; and the defendant’s cattle passed from the highway across a tract of uncultivated land, the same being woodland owned by one Dependance Wells, which is unfenced ; thence across a tract of salt marsh owned by one Doyle, unfenced, to the land of the plaintiff, also unfenced.</p> <p>The town of Kennebunk at its previous annual meeting, “ voted that neat cattle be allowed to go at large in school district, No 4.” The highway referred to and all the closes are in that school district.</p> <p>The questions submitted are: — Were the cattle lawfully going at large in the highway, in school district No. 4 ? If so, were they lawfully on the close of said Wells ? If so, could they lawfully cross the close of said Doyle, and thence to the close of the plaintiff, where the trespass was committed ?</p> <p>If the defendants’ cattle were trespassing, the defendants are to be defaulted. If not, the plaintiff is to become non-suit.</p> <p>In the establishment of a highway, the herbage is taken for the public, because it is placed in a condition to be of no value to the owner. It is compensated for in the estimate of his damages. The vote of the town, under the authority of the State, was therefore valid and effectual. It was manifestly the intention of the Legislature to protect the owners of cattle so going at large, not only against all forfeitures, but all damages in actions of trespass. Else the privilege would have been a poor one indeed.</p> <p>By the common law of Massachusetts and Maine, the owners of improved land bordering on the highway are bound to fence it and keep it legally fenced at their peril. Or they will not be entitled to recover damages in trespass, against the owners of cattle lawfully in the highway. The common law of England on the subject, if ever adopted, was modified and adapted to the condition of this country. Blackstone says the “ common law of England, as such, has no allowance or authority” in our American plantations, and he gives the reason, because they were obtained by “ conquest and driving out the natives.” The laws of the conquered remained till altered by parliament or some colonial Legislature, or by general consent. 1 Bl. Com. 108. It would not be necessary that such general consent should extend beyond the limits of a single State to make it lex non scripta, in that State. This country has been settled long enough to have a common law of our own, and we have such upon many subjects, different from the common law of England, and adapted to our condition. A large uncultivated country sparsely peopled might require a very different law in relation to cattle and fences from a small country highly cultivated with a dense population.</p> <p>The colony law of 1662, ch. 19, § 8, left the owners of land unfenced without any remedy, for damages done by cattle “ any other law, custom or usage to the contrary notwithstanding.” From this a common law has arisen in Massachusetts and Maine, different from the common law of England. It has from that time to the present, been the custom to fence cultivated lands bordering on the highway. And of this general custom the Court will take notice, as a part of the law of the land.</p> <p>It is true, in Rust v. Low, Parsons, C. J. says, the colonial statutes expired with the repeal of the first charter. They were not repealed; the principle has ever since been acted upon by general consent, the same exigencies existing after the repeal of the charter as before. What makes common law ? General consent. Lord Ch. Just. Wilmot has said, “The statute law is the will of the Legislature in writing; the common law is nothing else hut statutes worn out by time. All our law began by consent of the Legislature, and whether it is now law by usage or writing is the same thing.” 1 Bl. Com. p. 74, note 7.</p> <p>All the colony laws, the province laws, the statutes of Massachusetts and Maine, as well as the conduct of the whole people, are in harmony with the principle for which we contend. If any judicial decision has been in conflict with it, it has remained as an abstraction, and has not been acted upon by the people. Town v. Dodge & al, Potter v. Jewett, and Dodge v. Cross, reported by Dane, ch. 66, art. I, § 1.</p> <p>Some Judges in their decisions, seem to have rested very much on the ancient and general principle, which required the owner of cattle to keep them at his peril. And some very much on the other general and more modern principle, which requires the owner or occupier of land to keep it enclosed with legal fences at his peril. Dane, ch. 66, art, 1, <§> 1.</p> <p>The reason of this conflict in the decisions was this: Some of the Judges adopted the common law of England, and the other Judges adopted the common law of Massachusetts.</p> <p>In this case there is no ground to impute fault to the defendants. They were not bound to make any part of the fence, nor had they the right to do it, nor had they any power to compel others to do so.</p> <p>If the owner of lands adjoining the highway will not fence his lands, he consents that all cattle lawfully in the highway shall run upon them.</p> <p>The defendants’ cattle therefore were lawfully on the close of Wells, and if Doyle wished to keep them from his land he should have made a fence. But not having made any, he thereby must be considered as consenting that they should run on his land. The defendants’ cattle were then rightfully on Doyle’s land and the plaintiff was bound to fence against them at his peril. He could drive them away, or keep them off by fences, but could not maintain trespass against the owners.</p> <p>The many provisions in our law as to fences, show that the law is not regarded by the Legislature as a fence. It is most remarkable that we should have so many provisions requiring fences, if in fact every man is bound by law to take care of his own cattle, and keep them at all times from the lands of other persons.</p> <p>The doctrine in Stackpole & al. v. Healey, 16 Mass. 33, was a surprise upon the profession and the public. The people have continued to fence on the highways the same as before.</p> <p>The provision in the statute of 1834, ch. 137, § 3, was only in affirmance of what we contend the law was before, in relation to fences, and hence there was no necessity for incorporating it in the Revised Statutes. The same also is the case with the statute of 1821, ch. 128, § 6.</p> <p>In Gooch v. Stephenson, 13 Maine, 377, Ch. Jus. Weston says, “ Lands in this country cannot be profitably cultivated, if at all, without good and sufficient fences. To encourage their erection, it is undoubtedly competent for the Legislature to give to the owners of lands thus secured, additional remedies and immunities.” This was a case between adjoining owners, and rested upon the statute of 1834.</p> <p>The point that we have a common law in Massachusetts and Maine, on this subject, different from the common law of England, we respectfully contend, has not been duly considered by the Courts.</p>

The appellants had petitioned for the location of a highway from Saco to Gorham, extending into the counties of York and Cumberland. A joint meeting of the county commissioners of the two counties was duly held. Their decision was, that the way prayed for was “ not of common convenience and necessity,” and that the prayer of the petition ought not to be granted. From that decision, the present appeal was taken to the District Court.

Assumpsit on a policy of insurance against fire. At the trial, before Shepley, C. J. the defendants submitted to a default which is to be taken off and a nonsuit entered, if the plaintiffs are not entitled to recover. Several grounds of defence were set up. In relation to one of them, the important facts were as follows : — B. R. Dolloff and R. Leighton had been owners of a mill and machinery, and had mortgaged the same.

<p>A contract may be avoided by proof of defendant’s insanity at the time of contracting.</p> <p>For snch purpose, the proof may be offered by the defendant himself.</p> <p>If one, without consent of the maker, affix his name, as subscribing witness to a note which had been executed without attestation, it is a material alteration of the note.— Per Howard, J.</p> <p>But such alteration will not vitiate the note, if done without intention to defraud.— Per Howard, J.</p>

<p>The condition of a mortgage deed was, that if the mortgagor or his assigns, should pay $500, at a future specified, time, then the deed as also a note bearing even date with it, given by the mortgagor to the mortgagee to pay said sum at the time aforesaid, should both be void.</p> <p>in a bill to redeem by the mortgagor’s assignee, it was held, that parol evidence was admissible, before the master, to show that a note of $500, payable on demand with interest, was the one secured by said mortgage.</p> <p>A party who comes into a court of equity to redeem a mortgage, although entitled to redeem, must pay cost to a defendant who is not in fault.</p>

Case for killing plaintiff’s cow, by negligence of the defendants in not maintaining fences on the line of their railroad.

Case to recover for injury sustained through a defect in the highway, tried before Whitman, C. J. The plaintiff had hired a horse for the day. It was so badly hurt by the accident, that it was necessary to kill it at once. The plaintiff afterwards paid its value to the owner. The legal question reserved was, whether the instruction to the jury was correct.

Assumpsit, for the support of one Sarah Alexander, alleged to be a pauper, and to have a legal settlement in Phipsburg.

<p>These three suits were upon policies of insurance, effected upon the barque Elizabeth. The policies were effected on December 17, 1845, for one year, commencing and ending at 12 o’clock at noon.</p> <p>At the trial, before Shepley, C. J., it was admitted that the plaintiffs were owners of the parts of the vessel on which they had procured insurance ; that the preliminary notices were duly given and that offers of abandonment were made on January 8, 1847, and not accepted.</p> <p>The cases were all by consent put to the jury together.</p> <p>It appeared that the vessel was wrecked on the 17th of December, 1846, between four and five hundred miles from Bermuda, in the forenoon of that day, and that the master and crew remained upon the wreck a day' or two, before they were taken off and the wreck abandoned. In the deposition of the master, who had had a long experience, the opinion was given that the vessel could not have been saved. And there was other testimony introduced by the plaintiffs, of experienced shipmasters, as to the expense of repairing vessels thus damaged in the West India islands, all which testimony was objected to, but admitted by the Court.</p> <p>There was much other testimony, but without reciting it, the case may be understood by the opinion delivered. The plaintiffs claimed to recover for a total loss, contending that the proof established both a constructive and an actual total loss. The defendants insisted that they could be held at most only for a partial loss, and that to determine the amount of it, a general average should be taken into consideration.</p> <p>Instructions were given in relation to all these matters, and the jury were requested to be ready on their return into Court to state, if they found for the plaintiffs, whether they found their verdicts upon an actual or constructive total loss, or upon a partial loss. They found verdicts for the plaintiffs, and also stated therein, that they found an actual total loss. The instructions upon the claim for an actual total loss were, that the policies being executed and to be performed in Portland, the risk would not expire until the expiration of the year, the time being reckoned according as it would be 12 o’clock at noon, at Portland, on Dec. 17, 1846.</p> <p>That a vessel on the high seas might be considered as an actual total loss if she were found, by reason of the violence of the winds and waves, to have become a wreck, incapable of being saved and brought into port. Yet, however great might have been her injury, so long as it continued to be doubtful whether she might or might not be brought into a port, there would be no actual total loss. The mere fact that the master and crew might remain upon the wreck, would not prevent the loss from being considered total, if the vessel were incapable of being brought into any port. Nor would the mere fact that the vessel continued, as such a vessel, to float upon the seas, prevent the loss from being considered total, if she could not be brought into any port.</p> <p>If these rulings and instructions were erroneous, the verdicts were to be set aside, and new trials granted.</p> <p>contended that the policy being for one year, the rule of law is, and the jury should have been so instructed, that the insurers are answerable only for those consequences of the loss which take place before the termination of the risk ; and that inasmuch as the “ Elizabeth” was still a vessel and sailing at said .termination of the risk, the defendants were liable only for sucli injuries as she had received during the risk, though she might have been lost, after the termination of the time mentioned in said policy, from injuries received during the term for which she was so insured. Phillips on Ins. 708, 709, 710; Lockyer v. Affley, 1 T. R. 252 ; Marsh, on Ins. 174 ; Amer. Ins. Co. v. Hutton, 24 Wend. 330; Howell v. Cincin. Ins. Co., 7 Ham. 284; Eyre v. Marine Ins. Co., 6 Wheat. 247 ; Coit v. Smith, 3 Johns. Cases, 16.</p> <p>That the Judge erred in allowing the opinions of the witnesses objected to, to go to the jury. 1 Phil. Ev. 227 ; Dickinson v. Barber, 9 Mass. 227 ; Greenl. on Ev. 490 ; Hathorn v. King, 8 Mass. 371.</p> <p>as to the last point raised by defendants, relied upon Greenl. Ev. 1, § 440. That the instructions were correct, he cited Phillips on Ins. 1, 708 — 712; 2, ibid, 230 — 240 ; 6 Mass. 482.</p>

Action foe slandee. It was tried before Wells, J. and a verdict was rendered for the plaintiff. Exceptions were taken to the rulings at the trial. 1. The testimony offered was admissible both as to malice and as to damages. Starkie on Slander, chap. 27, also 25, p. 240; harmed v. Buffington, 3 Maine, 546; Alderman v. French, 1 Pick. 1 ; Brickett v. Davis, 21 Pick. 404. 2. The testimony as to the marriage was inadmissible. 3.

An indictment, tried in the District Court, Goodenow, J. The defendant filed a plea in abatement, that she was not rightly designated, being styled “ matron,” when she was a married woman, which plea the Judge overruled. The defendant then moved to have the indictment quashed for several reasons, which motion was also overruled; and a trial was had, and the defendant convicted.

Assumpsit on a policy of insurance. It came before the-Court upon a statement of facts. In 1346, one Ryerson mortgaged to the plaintiff the tavern stand and lot upon which the property insured stood, to secure three thousand dollars. Soon after this mortgage, Ryerson leased the property to S. Ryerson and L. Stowell, for a term of years, and among the covenants on the part of the lessees, was one to keep the property fully insured.

<p>Replevin for a bay mare. At the trial before Wells, J. the plaintiff showed that he swapped the mare in controversy for an iron gray horse, and paid defendant fifteen dollars for the exchange. There was testimony tending to show that the defendant, at the time of and before the exchange, represented said gray horse to be sound, and by one witness, that he said the horse was sound, and that the exchange was made in the evening by candle light; and that plaintiff relied upon defendant’s representations of soundness.</p> <p>It also appeared that several witnesses saw the gray horse on the next morning after the exchange, and that he had the heaves very badly, and consequently was of little value. It also was shown, that he had had the heaves for several years previous, and there was testimony tending to show that the defendant knew of the defect at the time of the exchange.</p> <p>It appeared that, on the next day after the exchange, the plaintiff went with the horse to the defendant and requested him to take him back on account of his unsoundness, and left him with the defendant and demanded the mare. The defendant refused to receive the horse or deliver the mare.</p> <p>The defendant introduced testimony tending to show, that the horse was valuable, and when fed on wet hay, did not exhibit the heaves except at intervals. He also introduced much testimony to show that he could not have known the horse was unsound, and by one witness, that his words were, “ the horse was sound as far as he knew.”</p> <p>Among other instructions to the jury, the Judge said, if they were satisfied that the defendant represented the gray horse to be sound absolutely and unqualifiedly, even if he did not know the horse was unsound, when in fact he was unsound ; or if he represented him to be sound as far as he knew, when in fact he was unsound, and the defendant knew him to be unsound ; and that the plaintiff relied upon those representations and they were not mere matters of opinion; in either case, the plaintiff would be entitled to recover; but if they found otherwise, their verdict should be for the defendant.</p> <p>A verdict was found for the plaintiff, and exceptions were taken to this ruling.</p> <p>A mere breach of warranty, without fraud, would not entitle the plaintiff to rescind the contract of exchange and recover back the horse in an action of replevin. Long on Sales and notes, p. 126. Kaze v. Johnson, 10 Watts, 109 ; Voor-hees v. Earl, 2 Hill, 288; Carey v. Grayman, 4 Hill, 626 ; 12 Wheat. 193.</p> <p>In order to rescind a contract not executory, and one in which there is no agreement to rescind, fraud must be shown and found by the jury to have been practiced at the inception of the contract. But there was nothing in the instructions about fraud.</p> <p>But if the Court should be of opinion, that the question of fraud was submitted to the jury with sufficient distinctness, then we contend, that if the jury found that defendant made an absolute and unqualified representation, as a matter of fact and not as mere matter of opinion, that said horse was sound, when in fact he was unsound, and the plaintiff relied upon said representation, still this would not constitute fraud in fact or in law, unless the defendant knew said horse to be unsound.</p> <p>But the case, (if submitted at all on the ground of fraud,) was submitted as a fraud in law or constructive fraud. The jury were instructed, that if they found certain facts, they were bound to return a verdict for the plaintiff. No case, it is believed, can be found that has carried the doctrine of constructive fraud, so far as this.</p> <p>The degree of fraud necessary for the rescisión of a contract is laid down by C. J. Mellen, in Cross & al. v. Peters, 1 Greenl. 336, and it must render the party subject to an indictment, or at least subject him to an action of deceit.</p> <p>The language of nearly all the cases is, that the scienter by the vendor must be proved.</p> <p>The cases in 18 Pick. 109, and 4 Mete. 151, are not similar to this, for the defendant had means of information and used them, and even if they did apply in principle, this cause was not put to the jury on the grounds set forth in those cases.</p>

Assumpsit upon an account and written contract. The contract declared on was to furnish a ship frame for the defendants, and among other things, it provided that the timber should be of good quality and hewn to the moulds in a workmanlike manner, and to the acceptance of such master carpenter as the said defendants might select to superintend the building said ship, or the hewing and moulding said timber, the said master carpenter’s service to be paid for by the plaintiff ;…

This was a bill in equity, praying that the defendants might be decreed to convey certain specified real estate, according to their bond to the plaintiff.

<p>When exceptions shall have been filed and allowed in the District Court to any of its preliminary, collateral or interlocutory judgments, directions or opinions, the exceptions must remain among the proceedings of that Court, without being entered in this Court, until the action shall have been prepared by nonsuit, default or verdict for its final disposition between the plaintiff and defendants in that Court.</p> <p>A trustee disclosed in the District Court, and filed exceptions to its rulings and entered the exceptions in this Court, before service had been made upon the principal defendant; Held, the exceptions must be dismissed, because prematurely brought into this Court.</p>

<p>When errors of fact arc assigned for the reversal of a judgment, a plea of “ in mullo est erratum," admits the truth of the facts assigned.</p> <p>A judgment, rendered against an administrator, within twelve months from his assuming his trust, for demands affected by the insolvency of the estate, and not by way of appeal from the decision of the commissioners of insolvency to ascertain the amount of a claim in dispute, is erroneous, and may be reversed.</p>

<p>Assumpsit for money had and received. The action was ■tried in the District Court before Goodenow, J., when it appeared that the President, Directors & Co. of the Exchange bank, conveyed all their property to the defendant and two ■others, in trust for the stockholders of said bank. Among the property thus conveyed, was a share in Union wharf in Port-Hand. On the first day of December, 1847, said store and share were sold and conveyed by said trustees to the plaintiff. On the first of January, 1848, a dividend of $60,25, was declared upon the share aforesaid by the proprietors of said wharf, and said dividend was paid by the treasurer of said wharf company, to the defendant, as one of the trustees of the said stockholders. The dividend was of the earnings and profits of said wharf for the year 1847, and was demanded by the plaintiff before the commencement of the suit.</p> <p>Upon this evidence the defendant requested the Judge to instruct the jury, that he was not personally liable to the plaintiff' in this action at common law, for the whole of the dividend aforesaid ; and further, that he was not liable in this action for any portion of said dividend. But the Court declined giving such instructions, and instructed the jury that the plaintiff was entitled to recover the whole of said dividend. A verdict was returned for the plaintiff for $60,25. To the instructions and refusal to instruct, exceptions were filed and allowed.</p> <p>1. If the plaintiff can recover any part of the sum sued for, it is but one-twelfth part thereof, viz. $5, or the rent and income for the month of December, 1847. Burden v. Thayer & al. 3 Met. 76.</p> <p>2. If the plaintiff, in his own name, could have recovered the year's rent or dividend of the lessee, or proprietors of the wharf, it does not follow', that he can recover it of the defendant. Eleven month’s rent having accrued to the bank or their said trustees, they being the legal owners of the store and share during that period, eleven-twelfth parts, viz. $55, are legally and equitably in the defendant for the benefit of the stockholders of the bank.</p> <p>3. Admitting that the rights of the parties are equal, the defendant cannot now be disturbed ; potior est defendentis.</p> <p>4. If the plaintiff has a right to the whole sum claimed, his claim should be made against the stockholders of the bank.</p> <p>First, — The deed from the trustees of the share in the Union wharf, passed the accruing dividends, which were subsequently declared. Burden v. Thayer & al. 3 Mete. 76; Wm. Clun’s case, 10 Coke, 128; State v. Waldo Bank, 20 Maine, 475.</p> <p>Plaintiff could alone receive the dividend of the wharf, as the share stood in his name at the time it was declared, and the dividends were composed of earnings, both before and after date of deed, and no rule to divide them.</p> <p>Second, — Defendant, having received plaintiff’s money, is liable to an action, for money had and received. Chitty on Contracts, 605 ; Hall v. Marston, 17 Mass. 578 ; Mason v. Waite, 17 Mass. 560.</p> <p>If defendant was a trustee, he was for himself and others, who were the original stockholders, and he should have plead in abatement non-joinder of other stockholders.</p> <p>Defendant was only an agent for himself and other stockholders, and had not paid over the money to his principal. Hathaway v. Burr, 21 Maine, 572 ; Garland v. Salem Bank, 9 Mass. 414.</p>

<p>Case, under chap. 29, § 9, R. S., to recover double the value of that portion of a partition fence, assigned by fence viewers to the defendant, which was built by the plaintiff on account of the neglect of defendant. The action was tried in the District Court before Goodenow, J., and a verdict returned for the plaintiff. No evidence was introduced by the defendant. Exceptions were taken to many of the rulings during the trial, and to many of the instructions to the jury, and for withholding those requested by the defendant. Only one point in the case was noticed by the Court, and consequently the others need not be mentioned.</p> <p>No previous notice of the time and place for adjudicating by the fence viewers, upon the sufficiency and the value of the fence was alleged in the declaration, to have been given to the defendant, nor was any such notice proved. The defendant requested the Judge to instruct the jury, that on the whole evidence in the case, this action could not be maintained. But the Court declined to give the instruction.</p>

Debt, on a poor debtor’s bond. The action was tried before Goodenow, J., June term, 1848, when the defendants set up a performance of one of the conditions of the bond. The debtor duly cited the creditors, within the six months allowed him by his bond, and made a disclosure of his business affairs, before two justices of the peace and quorum.

Tbespass, for taking certain mill logs. The defendants pleaded severally the general issue, and Thayer, one of the defendants, justified the taking by brief statement, as a deputy sheriff, on a writ of attachment, as the property of Moses. Chesley.

Replevin for goods, which the defendant, sheriff of the county of Lincoln, had attached as the property of one Barnes. Barnes was owner and commander of the schooner Palo Alto, which was under a fishing license. He purchased of the plaintiffs in Portland, the goods replevied in this suit, and transported them in the schooner to his residence in Wiscasset.

Assumpsit. It was originally brought against John U. Smith, for the use or charter of one fourth part of a brig.

This was a complaint for flowing about 10 acres of land. The respondents pleaded that they had a legal right to flow without compensation. The respondents claimed the right to open and close, and were allowed to do so, the complainant objecting thereto.

<p>When a master of a vessel, in selling the same under instructions of the owner, exceeds his authority, the principal is not bound.</p> <p>One dealing with a master, who is acting under special authority, is bound to know the extent of it.</p> <p>If a principal does not, in a reasonable time after actual notice of his agent's act, or after notice is to be presumed, disapprove of the conduct of his agent, a presumption of assent and ratification will arise.</p> <p>But when an agent, who has exceeded his authority, omits to inform his principal of his proceedings and there is nothing from which he can be presumed to know them, if the principal, within a few days after making the discovery, disavows the proceedings, he cannot be held to have ratified them, although performed more than five years previously.</p>

<p>The stat. chap. 9, <§. 31, R. S. page 374, does not apply, because it has no reference to trusts then existing.</p> <p>On the main point, I cite Unitarian Soc. v. Woodbury, 2 Shepl. 281; 7 Gill & Johns. 157 ; 25 Maine, 354; Botsford v. Keble, 12 Ves. 74; Hanley v. Sprague, 20 Maine, 431 ; Miller v. Pearce, 6 Watts & Serg. 97; Rutledge’s Adm’r v.' Smith’s Ex’rs, 1 McCord’s Ch. 119; 2 Story’s Eq. p.442, <§> 1199, note, particularly what is said as to a lien on the estate sold, for the consideration stated in the deed; Story’s Eq. p. 444,$ 1201.</p> <p>The case in 2d Shepley, applies to all the points raised, both as to general principle, and the correctness of seeking a remedy against the administratrix.</p> <p>Upon the facts stated in the bill, there is no such trust, which may “ arise or result by implication of law,” as makes it the duty of the Court to compel the defendants to convey to the plaintiffs the estate, which descended to these children from their father. R. S. c. 91, $ 31, and c. 96, $ 10, as to the authority by statute.</p> <p>Parol testimony not admissible to vary the terms of a deed or contract in writing, in equity more than at law. Elder v. Elder, 1 Fairf. 80; Brown v. Haven, 3 Fairf. 179; Eveleth v. Wilson, 15 Maine, 111.</p> <p>Nor is it competent for the plaintiffs, under the name of a resulting trust, to give to the deed, by parol proof, a meaning and effect directly contrary from what the terms of the deed import, to make, by parol proof, a deed to the grantee and his heirs, in fact, a deed to the wife and children of the grantor, no consideration being paid by any one. 4 Kent’s Com. (3d Ed.) 306, 308, 309; Jackson v. Moore, 6 Cowen, 706; Buck v. Pike, 2 Fairf. 24, respecting resulting trusts. Thomaston Bank v. Stimpson, 21 Maine, 197 ; Bryant v. Mansfield, 22 Maine, 360; Wilton v. Harwood, 23 Maine, 131; Marston v. Humphrey, 24 Maine, 514; Cowan v. Wheeler, 25 Maine, 267; Botsford v. Burr, 2 Johns. Ch. 405; Hopkins v. Mazyck, 1 Hill’s Ch. 242. And from Barbour & Harrington’s Dig. without seeing the cases, Tubman v. Anderson, 4 Har. & McHenry, 357 ; Vick v. Flowers, 1 Murphy, 321. Hickman v. Grimes, 1 A. K. Marsh. 87 ; Leman v. Whitley, (English case,) 4 Russ. 423.</p> <p>The objection here made may be taken advantage of on demurrer. If the bill, as presented, does not exhibit a case for the interference of a court of equity, it will be dismissed on demurrer. Reed v. Johnson, 24 Maine, 322; Chase v. Palmer, 25 Maine, 341; Woodman v. Freeman, ib. 531.</p> <p>And it is not enough to allege, merely, that a conveyance of land by an absolute deed from a third person to the defendant, was made in trust for the plaintiff. It should appear, that the conveyance was made in trust expressly or by implication; and if by implication, such facts should be stated, as would clearly show it to have been so made. Rowell v. Freese, 23 Maine, 182.</p>

An action of dower. The case came before the Court upon an agreed statement of facts. Scolly G. Usher was married to Sarah, the demandant, in 1823, and he acquired title to the premises by deed, dated Jan. 1, 1816. He mortgaged the same in 1818, and died in 1826. The demandant, as his administratrix, sold the land to Atherton Usher, whom she afterwards married.

Trover for twenty barrels of ale. At the trial, before Wells, J., it appeared that one Carroll shipped at New York, twenty barrels of ale, and took a bill of lading from the master, for the delivery of it at Portland, to R. R. Robinson or to his assigns. The bill of lading was sent to Robinson, together with a draft for the payment of the ale, and was accepted by him before the arrival of the vessel.

<p>The authority of this Court to issue writs of injunction, is limited to the equity jurisdiction, given by the statute.</p> <p>The rules of set-off in courts of general chancery jurisdiction, cannot prevail in this State, when at variance with the provisions of our statute upon that subject.</p> <p>E purchased of W, a contract against S, and gave his note for the purchase money, to be paid “ as soon and as fast as it may or can be collected” on the contract, and if not so collected, to be paid in four years. Held, the contract was not made the fund, out of which the note was to be paid.</p> <p>In settling the contract, S gave to E, a negotiable note marked A, and a bond. E assigned the bond to secure some of his creditors, and negotiated the.note. S, then purchased of W, the note against E. Held, the Court has no equitable jurisdiction to enjoin the holders of the bond and of the note A, from proceeding upon them at law against S, or to compel them to be set off against the note which S purchased of W.</p> <p>A defendant cannot claim to set off the plaintiff’s demand against a note indorsed to the defendant, unless the plaintiff had agreed with the defendant to pay him such note or to receive it upon his demand.</p>

Assumpsit upon a note, given by the defendant to the plaintiffs. The defendant filed an account in set-off, for a stock of goods, for which he contended the plaintiffs were bound to account to him. Said stock of goods was conveyed by defendant to the plaintiffs by a mortgage duly executed and recorded on the third day of August, 1848, to secure the note in suit and two other notes.

This was an action of assumpsit upon a supposed warranty of the genuineness of the signatures of two indorsers upon a promissory note.

Action on the case, tried before Wells, J. for suing the plaintiff in the name of E. P. Farris, and causing him to be arrested and “ committed” without any authority from Farris. That action was for peddling without license. The plaintiff offered as a witness, E. P.“ Farris, who was objected to as the plaintiff of record in the suit complained of. But he was admitted.

, Assumpsit upon a note of hand, dated Nov. 9, 1832, for $ 1300, payable to plaintiff and signed by Jacob D. Brown and defendant as principals, and others as sureties. Plea, the general issue and statute of limitations. The action came on for trial before Shepley, C. J., when it appeared, that the action was commenced at the District Court, in 1842, and that the writ and note had been destroyed afterwards by fire.

This was a complaint against the defendant for a violation of § 3, chap. 24, of the ordinances of the city of Portland. A copy of the article was not incorporated into the report of the case, but it is supposed to be an article requiring keepers of bowling alleys to close them at six o’clock. The defendant being convicted before the Municipal Court, carried the case to the District Court by appeal.

The plaintiff commenced this suit against the defendant, as executor, more than four years after his appointment, under these circumstances. Before the four years had elapsed, the plaintiff’s attorney brought an action upon the same demand, to the District Court, but after the writ was served and returned to his office, the attorney supposing the Court sat later than it did, omitted to enter the action, and this suit was com» menced in consequence of that omission.

Assumpsit, on a note payable to one Merritt Caldwell, and by him indorsed to the plaintiff. The brief statement filed alleged that the note was given for usurious interest. At the trial, before Goodemow, J., the plaintiff, by a counselor of this Court, proved the indorsement of the note at his office, and that the present plaintiff was the subscribing witness to the note.

Case, for the misfeasance and neglect of Ebenezer F. Gray as constable of the city of Portland, in not serving in due season upon the trustee, a writ of attachment and trustee process sued out by the plaintiff against one George Dyer and trustee. At the trial, before Goodenow, J., in the District Court, the defendant moved a nonsuit, on the ground that the action, as set forth, was a tort and did not survive.

This action was entered at the March Term of the District Court, 1847. The trustee lived in the county. At the first term, Poor & Adams entered their names under the action, as attorneys-for the trustee, but he did not then appear and submit himself to examination- At the next term he disclosed, and was charged. To that judgment he excepted, and in the Court above the exceptions were sustained, and he was discharged. The trustee claimed costs after the exceptions were filed.

Assumpsit, on policies of insurance against fire. These three actions, were all brought to the District Court, and were of a similar character. The plaintiffs resided in this county, and the defendants were corporations under the Legislature of New Hampshire.

This was an action to recover the plaintiff’s fees for committing sundry persons to the house of correction in Portland. The plaintiff was a constable of the city of Portland, and the mittimusses which he executed, issued from the Municipal Court of said city.

<p>A paper given by defendant to plaintiff, promising to pay him one hundred and tvrenty-throe and G-100, on demand and interest, is a note payable in money, and for a sum certain.</p>

Assumpsit upon a note given in 1829. The defendant pleaded the general issue, and filed a brief statement that he never promised within six years before the commencement of the action. At the trial, before Goodenow, J., in the District Court, the defendant objected to the reading of the note, because there was no replication or counter brief statement that the note was a witnessed note, which objection was overruled, and the note was read.

Assumpsit, to recover $4,30 paid by plaintiff as a tax assessed upon his poll and estate by the assessors of Lewiston, and the sum of $ 17,75 as the fees and charges for the arrest and commitment of the plaintiff on the collector’s warrant for the non-payment of the tax afore.said. Both of said sums were paid to the keeper of the prison at Wiscasset in the county of Lincoln, to obtain a discharge from said prison.

<p>An appeal from a decree .of the judge of probate for Cumberland county, refusing to grant a, license to sell the real estate of the testator, to the amount of $7500. The facts appear in the opinion of the Court.</p>

<p>Where a poor debtor, under bond given to liberate himself from arrest, duly cites his creditor, discloses personal property not exempted from'attachment, and takes the oath prescribed; but within thirty days afterwards refuses to deliver the said property, to an officer, having a renewed execution to take it upon, his bond is thereby forfeited.</p> <p>Although one of the conditions in the bond differ from the phraseology of the statute, so as to read that the debtor will “ deliver himself and go into close confinement,” instead of reading that he will “ deliver himself into the custody of the keeper of the jail, into which he is liable to be committed under said execution,” the bond is nevertheless a statute bond.</p>

Exceptions from the District Court, Rice, J., when the supposed trustee was charged. The adjudication in the District Court was made upon the disclosure of the supposed trustee, and depositions taken and filed in the case, and these with the writ formed the case as presented to this Court. contended that the disclosure, with the depositions, did not exhibit a case, in which the trustee could be charged.

<p>This is a bill in equity to redeem real estate mortgaged.</p> <p>The estate at one time belonged to Nathan W. Sheldon. He mortgaged it Oct. 12, J837, to Lot Myrick, Cushing Bryant, Josiah Myrick and Augustus F. Lash, to secure the payment of three notes, one of $333,34, and two of $333,33 each, to Lot Myrick and Josiah Myrick.</p> <p>It is against that mortgage that the bill seeks to redeem.</p> <p>Whether the plaintiffs have established in themselves a right to redeem, is the exact and decisive inquiry, upon which the case turned. It will not be necessary, therefore, to exhibit any more of the case than relates to that inquiry.</p> <p>The plaintiffs claim the right under Bartlett. Sheldon, through a levy, which was made on the 17th Feb. 1842, upon his supposed life estate in the premises. The levying creditors, immediately after said levy, sued their writ of entry against said Bartlett, and recovered judgment for possession and mesne profits, May, 1846. Said Sheldon pleaded non tenure, in that suit-</p> <p>All the rights of the said levying creditors came by due course of conveyance to the plaintiffs, who seasonably requested the mortgagees to render an account of rents, &c., that they might redeem. But no such account was rendered.</p> <p>The bill charged that N. W. Sheldon, on the 10th October, 1841, conveyed the land to Bartlett, to hold for the term of his natural life.</p> <p>The defendants in their joint and several answers, deny that N. W. Sheldon delivered such a life estate conveyance, to Bartlett; but assert that, if ever such a conveyance was drawn up, it was deposited with E. D. Robinson, as an escrow, to be delivered to said Bartlett on certain conditions, which were never performed; and that it never was delivered, but was afterwards canceled in the presence and by the consent of all parties. And they assert that they have no knowledge or belief that said Bartlett ever had such a life estate in the premises.</p> <p>The plaintiffs then amended the bill, “ by inserting an amended description of the conveyance from Nathan W. Sheldon to Bartlett Sheldon, as follows,” viz: “ And there-afterwards said Nathan W. by his deed indented, duly executed, dated Oct., 1841, conveyed the same mortgaged premises to said E. D. Robinson, to his heirs and assigns forever, in trust for the use of said Bartlett and his wife, Lucy H. and their heirs forever, and said Robinson accepted said trust, and executed said deed, on his part, covenanting to fulfil said trust.”</p> <p>The plaintiffs further charge, that before the last named deed was given, and soon after the giving of said mortgage deed, said Nathan W. for a sufficient consideration, conveyed the same premises to Bartlett Sheldon, his heirs and assigns forever; that said Bartlett having entered into the premises, continued to occupy and improve the same as his own rightful property; that said Bartlett conveyed parcels of said land to different persons, viz : one parcel to Joseph Stetson on Nov. 26, 1837, in consideration of $360; one parcel in Jan. 1838 ; one parcel to L. S. Hubbard, Sept. 30, 1841, in consideration of $800; and that afterwards, in order to defraud the plaintiffs and also the creditors of said Bartlett, and to defeat the titles to the parcels said Bartlett had conveyed as aforesaid, the last named deed from Nathan to Bartlett, was delivered up to said Nathan and canceled, without having been recorded ; and the deed of trust was made in lieu thereof. And that afterwards, for the purpose of defeating the said levy which was made as aforesaid, upon said Bartlett’s life estate, the said deed of trust was fraudulently given up and canceled.</p> <p>Josiah Myrick died since the bringing of this suit.</p> <p>A bill of revivor has been brought against E. W. Farley, administrator to said Josiah and also against four children and heirs of said Josiah.</p> <p>To this bill of revivor the respondents therein have pleaded that the mortgage was given to secure notes made payable to Lot and Josiah Myrick, and that on the death of Josiah tho notes became the property of Lot, by survivorship.</p> <p>Augustus F. Lash also died after the bringing of this suit, and a bill of revivor has been brought against his representatives to which they have pleaded the same plea in substance as that offered by the representatives of Josiah Myrick.</p> <p>It appeared at the trial that N. W. Sheldon, while the suit against Bartlett was pending for the mesne profits, by deed dated October 20, 1843, conveyed to Bartlett the mortgaged premises, and that Bartlett, by deed dated October 19,1843, mortgaged back sixty acres, “ being part of the same farm this day conveyed by said Nathan to me ; ” that judgment in said suit for mesne profits was recovered against said Bartlett in 1846, the suit having been commenced in May, 1842.</p> <p>Nathan W, Sheldon, in 1842, conveyed to Stetson and Hubbard, respectively, the lots which Bartlett had conveyed them.</p> <p>Bartlett Sheldon and N. W. Sheldon are made defendants in this suit, as well as the original mortgagees, as also is Stetson and also Bryant, who claims under Hubbard, and Flye, who claims under Stetson.</p> <p>The facts, deemed by the Court essential in the decision of the case, are stated in their opinion.</p> <p>1. The deed of trust, N. W. Sheldon to E. D. Robinson, as trustee for Bartlett Sheldon and his wife, and the levy of execution, Jackson & al. v. Bartlett Sheldon, gave them a life estate in the mortgaged premises, subject to the mortgage. Waite v. Belding, 24 Pick. 129, 133; Cook v. Holmes, 11 Mass. 526, 531; Hawley v. Northampton, 8 Mass. 3.</p> <p>2. The judgment recovered by Jackson & al. against Bartlett Sheldon, in a writ of entry, commenced May, 4 842, estops said Bartlett from denying the execution and delivery of the said deed of trust, and binds his assignees becoming such pen-dente lite, and all claiming from or through him subsequently. Story’s Eq. Jur. $ 405 and 416 ; Daniel’s Chan. 1267; Atlas Bank v. Nahant Bank, 23 Pick. 489, 490 ; Eldridge v. Acocks, 2 Pick. 319 ; Jackson on Real Actions, 145, note u ; Bishop of Winchester v. Paine, 11 Yes. 194; Fonbl. Eq. b. 2, chap. 6, § 3, note n.</p> <p>3. Nathan W. Sheldon has no title and claims none, but by-virtue of a mortgage from Bartlett Sheldon, dated 1843, of about sixty acres, part of said premises ; and being an assignee pendente lite, he is bound by the judgment against said Bartlett, and the deed would give him but a reversionary interest in the bond. And if it were otherwise, he could not deny plaintiffs’ right to redeem, in respect to the residue.</p> <p>4. Stetson, Fly and N. Bryant, (parties defendants,) owners each of but an acre or two of the premises, deriving their title from N. W. Sheldon before the matter of estoppel, and also from Bartlett Sheldon by former deeds, may not be affected by the judgment against Bartlett, and might either of them redeem. But they cannot question the plaintiff’s right to redeem also, in respect to the residue, and are liable to contribution. Taylor v. Porter, 7 Mass. 355.</p> <p>5. Lot Myrick and Cushing Bryant, claiming no interest but by virtue of the mortgage, are, on this question of redemption, estopped to deny the plaintiffs’ right to redeem, by whatever estops those who claim the right in equity to redeem adversely to plaintiffs.</p> <p>So with the representatives of Augustus F. Lash, and the representatives of Josiah Myrick, the deceased mortgagees. As to the operation of the deed of quitclaim from Bartlett Sheldon to Lot and Josiah Myrick, of January, 1846, the former never having taken delivery of it and repudiating it, took no interest by it, and the latter was, and his representatives are, estopped to claim any thing by it, except a reversionary interest, expectant on the death of Bartlett Sheldon.</p> <p>There being no others claiming any interest adverse to plaintiffs, their right to redeem is clear and unquestionable.</p> <p>6. The foregoing positions present the case independently of any question as to the actual execution and delivery of the deed of trust of 1841, and steers wide of the palpable trick, fraud and contrivance, by which, as plaintiffs say, Bartlett Sheldon and his brother Nathan W. Sheldon have sought to elude and defraud the creditors of the former, and for that purpose to avoid the effect of the trust deed.</p> <p>That attempted fraud has once undergone the fullest investigation, when N. W. Sheldon had the benefit of his own testimony before a jury, to the whole transaction, and the verdict in that case is conclusive upon Bartlett Sheldon and upon all claiming by, through or under him. The defendants, Stetson, Fly and N. Bryant, are the only persons now who have any right to make an issue on that point, and they may not have any occasion to do so.</p> <p>7. The plaintiffs, having a right to redeem by virtue’of their life estate in the mortgaged premises, may pay the balance due on the mortgage, and hold the land during the life of Bartlett Sheldon and until others interested in the estate, shall contribute according to the established rules and principles of equity.</p> <p>For the settling of those outstanding equities, and future contingencies, this bill may be retained, on the question, should any ever arise, among these or other parties, who may become interested in the estate.</p> <p>8. One tenant in common has a right to redeem and may claim to know what is due for that purpose. In preferring his bill it was necessary to make all others interested, parties, plaintiffs or defendants. He made Stetson, Fly, &c. parties defendants, they declining to be co-plaintiffs. Gibson v. Crehore, 5 Pick.</p> <p>9. The mortgagers in this case were tenants in common and on the death of Myrick and Lash, two of the mortgagers, their heirs should be made parties by revivor in respect to the realty, and their administrators in respect to the account to be taken of the moneys received on the mortgage, and of the rents and profits and repairs.</p> <p>10. The representatives of Josiah Myrick should be made parties by revivor on account also of the deed of Bartlett Sheldon to Lot and Josiah Myrick, of January, 1846.</p>

Trespass for passing with teams across the land of the plaintiff. The land had formerly been in co-tenancy between the plaintiff and the wife of the defendant. A division had been made by deeds between the plaintiff and defendant. The plaintiff had forbidden the defendant to pass upon his land, though he and others had passed there several years.

<p>If the guardian, in the settlement of his account, omit an entire item which he ought to have credited to the ward, that settlement will not protect him from liability, in his next settlement, to account for such item.</p> <p>A guardian is accountable for interest moneys due on notes to his ward, whether he collect them, or whether they be lost by his neglect.</p> <p>A guardian is not entitled to any compensation for services, if he neglect to settle a guardianship account once in every three years, unless prevented by sickness or unavoidable accident, although he was never cited to make such a settlement.</p>

Exceptions, from the District Court, Rice, J. The plaintiff in his declaration alleged that he bargained with the defendant to buy of him two bushels of summer rye, sound and fit for seed rye, to be sown for the production of a crop, during the season then about to commence, for a valuable consideration; and that the said defendant sold to the plaintiff two bushels of rye, as and for summer rye, sound and fit for seed, to be sown as aforesaid, for a valuable consideration…

Trover, for the conversion of the schooner Palo Alto and her cargo. The vessel was enrolled in the district of Wiscasset, June 27, 1847, as measuring 20¿§ tons, of which plaintiff appeared to be owner and master, and was under a fishing license. The plaintiff proceeded in her to Portland, purchased a quantity of goods of Mitchell & Son, to the amount of §873,36, of which §387,64 was for spirituous liquors, there being more than 500 gallons.

Debt, brought by plaintiffs as fish committee of the town of Bristol, to recover of defendant the penalty named in the seventh section of a special act passed March 4, 1826, entitled “ an act to regulate the alewive fishery in Bristol,” for resisting and opposing said committee in the performance of their official duty.

<p>If there be a series of conveyances with warranty running with the land, and tile warranty be broken, the remedy belongs to him, during whose ownership or claim of ownership, under the conveyances, the warranty is broken.</p> <p>One of the grantees in such a series can have no. action against his grantor for a breach of the warranty, occurring after having himself conveyed the land.</p> <p>In an action for the land, by one claiming under a paramount title, if the tenant vouch his immediate warrantors, who take upon themselves the defence, their release of a previous warrantor will not render such previous warrantor a competent witness for the defence.</p> <p>The act of the tenant, in vouching his immediate warrantors, does not impair his remedy against a previous warrantor.</p>

Case, against the defendants, for taking and catching 200 alewives in St. George’s river, within the town of Warren, on Tuesday, the twenty-fifth day of May, A. D. 1847, without permission, &c. This action was originally brought before a justice of the peace, by the plaintiffs, as a fish committee of the town of Warren, to recover the penalty accruing to the use of said town, for the alleged unlawful taking of alewives.

Exceptions from the District Court, Rice, J. The action was assumpsit upon a note given to the plaintiff, and not negotiable, for $ 175, on which there were several indorse-ments, the last under date… Held: in an action on the note, that B could not avail himself of such partial failure of consideration to reduce the damages below the sum expressed in the note. Pul-sifer v. Hatch, 12 Conn. 234.

Assumpsit, on facts agreed, to recover the amount the plaintiff paid for tho defendant’s board while in jail on his execution.

Exceptions from the District Court, Rice, J. Petition for partition. In the District Court, judgment, upon default, was entered, quod partitio fiat, and commissioners wore appointed, who made their report at the October term, 1847. At the same term the respondents were permitted by the Court to oppose the acceptance of the report, and the action was continued, on their motion, to the then next term.

Indictment, against the defendant for unlawfully keeping and suffering to be kept for the purpose of hire and gain, a certain shop or building for the purpose of gaming, gambling and playing for money and other things, &e. On the trial, in the District Court, before Rice, J., the county attorney introduced evidence tending to show that such a building was kept by the defendant for the purpose of playing at bowls and cards; those who played at bowls paid fifty cents an hour,…

<p>Assumpsit upon a note, made payable to the bank, but for the benefit of one Williams, under an agreement between him and the defendants that the bank should hold the property as trustee for Williams, for whose use this action is brought. The note was never discounted or accepted by the bank. But their president, cashier and general attorney knew of the pendency of the suit, without objecting to it.</p> <p>The jury were instructed that, with the consent of the bank the action might be maintained, and that such consent might be inferred from the acts of their officers.</p> <p>1. The bank could not become a party, except by discounting the note. Stat. of 1831, c. 519, § 2.</p> <p>2. The Banks’ consent to stand as trustees to Williams, and to have the suit in their name, could have been given only by consent of a majority of their directors. Stat. of 1831, c. 5L9, <§, 7; Angelí on Corp. 171, 191, 249; 16 Pick. 574, is in point, both as to principle and details.</p> <p>3. It was not competent for a bank thus to become a party without interest. Such power was not given by the Legislature. It would be dangerous to the public. Stat. of 1831, c. 519, <§> 2 ; Angelí on Corp. 192, 200; Bank Act of 1841 ; U. S. Dig. p. 602, § 88.</p> <p>4. Even with the assent of the bank, the suit is not maintainable. There never became a contract between these parties. Whatever contract existed, was between the defendants and Williams. Upon that contract, and not upon the note, he should have brought suit. Allen v. Ayer, 3 Pick. 298; Bank v. Adams, 16 Pick. 579.</p>

<p>it seems, that in replevin, after issue joined upon the merits, it is too late to move that the action be dismissed, because no replevin bond was returned.</p>