Volume 3 — Maine Reports

<p>Where a vessel was chartered “ for a voyage to be made from Portland to sea, “ and taie a cargo from on board the British brig Fountain, and proceed with the “same to one or inore ports in the West Indies, and from thence to Portland,” this was hóldén to be one entire voyage.</p> <p>But seamen’s wages in such case áre due at the port of destination in the West Indies, though the payment of the charter-money was expressly made to depend on the safe arrival of the vessél in Portland, to which place she never returned, being lost while lying at her outward port.</p>

<p>If one enter upon land in the possession of a tenant at will, and tread down the grass, and throw down a fence erected hy the tenant for his own convenience, the landlord shall not have an action for this wrong ; but the remedy belongs to the tenant, the injury being wholly to his rights, and not to any permanent rights of the landlord.</p>

Assumpsit on a promissory note made by the defendants’ testator to the plaintiff. The defendants pleaded — -first, the general issue ; — second, that more than four years before the commencement of the action, viz. Jan. 25, 1825, they were duly appointed executors, accepted that trust, and gave notice thereof as the law requires.

In a writ of Error coram vobis to reverse a judgment of the Court of Common Pleas, the question was, whether a licensed physician might now maintain assumpsit for his fees, without having deposited a copy of his license with the town clerk of the town in which he resided, agreeably to Stat. 1817 ch. 131 ? The Statutes on this subject were as follows.

This was a writ of scire facias against the defendant as indorser of an original writ in favor of one Wentworth against the present plaintiff. It was indorsed thus ; — “ George Wentworth, by Arthur McArthur his Attorney.” The original action, while pending, was submitted to a referee, upon whose report judgment was rendered in favor of Davis, the now plaintiff.

<p>At a former term of this Court judgment was rendered for the plaintiff in a suit between these parties, and execution was duly issued ; and extended on the debtor’s real estate. After the extent was recorded, and the execution returned to the clerk’s office, it was discovered that the clerk had accidentally omitted to affix the seal of the Court to the execution.</p> <p>And now Greenleaf and Fessenden for the plaintiff moved the Court for an order to the clerk to amend the execution, by affixing the seal, and cited the following cases to shew that all mispris-ions of the clerk in judicial writs may be amended, by Slat. 8II. 6. cap. 12. 5 Co. 35. b. 1 Com. Dig. Jlmendment, W. Campbell v. Stiles 9 Mass. 217. Burrell v. Burrell 10 Mass. 221. Young v. Hosmer 11 Mass. 89. Suydam v. Me Coon, Coleman’s Cas. 59. Phelps v. Ball Colem. Ca. 66. ¿ l . Johns. Ca. 31. Mclniire v Rowan 3 Johns. 144. Whiter. Lovejoy 3 Johns. 448. Buckv. Barnard 4 Johns. 309. Bisselv. Kip 5 Johns. 89. Cramer v. Van Jllstine 9 Johns. 386. Pepoon v. Jenkins Colem. Ca. 55. Seaman v. Drake 1 Caines 9. Close v. Gilleshey 3 Johns. 526. Holmes v. Williams 3 Caines 98.</p>

At the trial of this cause before Weston J. upon the general issue, it appeared that in June 1820, the defendant came to the plaintiff’s store in Portland, and offered him a recognizance of debt signed by one Procter, in exchange for its amount in goods ; — that Procter. at this time was in the country, getting lumber for the plaintiff, but was in doubtful circumstances, paying only such debts as he chose to pay ; — that the plaintiff expressed strong doubts about the…

Debt on an administration bond. The defendants having answered over, agreeably to the order of the Court, ante Vol. 2, p. 239, the'cause came on for trial at the la,st November term before the Chief Justice, when the only question oí fact upon the special pleadings, was, whether Mayo, the defendant, had notice before .Mm/28, 1813, of the lien of the plaintiff’s attorney for his costs upon a judgment rendered in the Supreme Judicial Court of Massachusetts in this county at…

This action, which was debt for the non-appearance of the defendant at a militia training, being tried at the last November term before the Chief Justice at the bar of this Court, agreeably to the order in the same case ante, Vol.%,p. 181, — it appeared that the plaintiff prosecuted as clerk pro tempore of the company.

<p>At the trial of this cause in the Court below, which was assump-sit, a verdict was returned for the defendants and judgment rendered thereon, from which the plaintiff appealed, and in this Court at the last term obtained a verdict for forty five dollars.</p> <p>thereupon moved for judgment for their costs since the appeal, and that none might be taxed for the plaintiff, pursuant to Slat. 1822, ch. 193. sec. 4.</p> <p>on the ground that the case was not within the terms of the statute, and it would be unreasonable to punish the plaintiff for coming into this Court to obtain his debt, which was wholly denied him in the Court below.</p>

lx assumpsit on a promissory note, the ad damnum in the writ was laid at 300 dollars, and a verdict being returned for the plaintiff, and judgment thereon in the Court below for more than a hundred dollars, the defendant appealed to this Court and entered his appeal, hut afterwards was defaulted. at the last term moved for the taxation of double costs since the appeal, pursuant to Stat. 1822, ch. 193, sec. 4, which was opposed by Fessenden & Dehlois for the defendants.

Trespass against the defendant, a deputy sheriff, for taking and carrying away 10,000 bricks from the plaintiffs’ kiln.

The question in this case was — whether J. & JE. Hoole were liable as the trustees of Morrell Jordan 2 It appeared from their disclosure, that Morrell Jordan, being indebted to them in the sum of $¡230, indorsed and delivered to them a negotiable promissory note against his son Isaiah Jordan for $640, taking their receipt for the same, in which they promised to account, for the proceeds of the note when collected, and to pay him the balance, after deducting their debt ; —…

<p>A ’feme covert cannot bind herself, by an executory contract, to convey her own lands, even though'her husband join with her in the obligation.</p> <p>Nor can her administrator be empowered, under Sfaf.'1821, ch. 52, sec. 13, to carry such contract into effect by executing a deed.</p>

The record of a conviction of Cummings of the crime of larceny before a Justice of the Peace, being brought into this Court by certiorari, it appeared that in the complaint he was charged with having stolen u the goods in the schedule hereunto annexed and no schedule came up with the record.

Debt on a bond dated Oct. 28, 1822, conditioned that the defendant Lowell, who was a debtor committed in execution, should ££ continue a true prisoner within the limits of the gaol-yard, until ££ he shall be lawfully discharged, and shall not depart without ££ the exterior bounds of said gaol-yard, until lawfully discharged “ from said imprisonment, and commit no manner of escape.” The defendants, after oyer, pleaded generally a performance of.the condition; — to which the…

The plaintiff in this action, which was assumpsit, having a demand against the defendant’s testator, they mutually agreed, by a memorandum in writing, without seal, to submit it to the determination of three referees, and to abide by their award. The defendant appeared at the hearing before the referees, and after remaining a short time, went away, observing that he had no doubt but they would do right.

<p>Dower, unde nihil habet. The tenant pleaded in bar, that he was one of the lawful heirs of John Rowe, the demandant’s husband, and claimed a portion of the lands by descent ; — and that by a certain deed indented between the husband in his life time, and the wife, they mutually agreed to live separate and apart; and the husband therein agreed to pay and did pay her four hundred dollars for her own separate use and maintenance ; — and acquitted to her the right of dower which she had in the estate of her former husband ; — and released to her his right, by virtue of the marriage, to any estate of her late farther and covenanted that he wmuld not revoke a letter of attorney he had given to her to receive her share in her father’s estate to her own use ;— and that she might at all times thereafter live separate and apart from him -wholly renouncing his marital rights to her person and society, and to any estate she might afterwards acquire ;— and further covenanted that neither he nor his executors or administrators should ever intermeddle with such estate, or interrupt any disposition she might make of it; — in consideration whereof the demandant on her part covenanted and agreed w'ith the husband to accept and take the same in full satisfaction for her support and maintenance, and also all alimony whatever, during her coverture ; and also in full satisfaction of her right of dower in her husband’s estate and averred that the husband in his life time, and his executors and administrators, had faithfully kept and performed all the covenants on his part to be performed, &c.</p> <p>To this the demandant replied, that at the time of making and sealing the said instrument she was covert of the said John Rowe, her husband, and so continued to the time of his death. Whereupon the tenant demurred in law.</p> <p>relied on the colonial ordinance of 1641, Anticnt Char. p. 99, which provides that all wives shall be endowed of the estate of which the husband was seised, unless released by the feme by deed acknowledged before a magistrate. This ordinance, he contended, expressly recognised the power in a feme covert, to release her claim to dower by deed acknowledged ; and it did not expire with the first charter as is said in Foioler v. Shearer 7 Mass. 20■ — but was expressly revived by the first acts of the provincial legislature under the charter of William and Mary. An. Char. 213, 229. And the law to be, deduced from these statutes is, that a feme covert, by her own deed, may estop herself from claiming dower in the estate of her husband ; and such deed is thus made equivalent to a fine levied by her. Eare r. Snow & al. 1 Plowd. 514. 2 Bac. Abr. 139, 140. 2 Rol. Abr. 395. 10 Co. 43. 1 Bane’s Abr. 94.</p>

This was an action of debt, brought by the late sheriff of this county against one of his deputies, on his bond of office ; to which, after oyer, the defendant pleaded generally that the condition was performed.

This was a writ of entry for possession of certain lands described as lying within the town of Alna. The tenant claimed the premises under a sale by the collector of the town of Aina, for non-payment of taxes ; and the demandant claimed them as lying within the town of Dresden, and being part of the estate of the late Dr. Gardiner.

Assumpsit by the indorsee against the maker of a promissory note, dated May 26, 1818, payable to James Marr, the father of the plaintiff, or his order, in three years from the date with interest.

<p>where a minor, at a great, distance from his father, entered into a contract, of labor for another, which he performed; and the party afterwards refused payment, insisting that he acted only as the agent of a third person, with whom the minor was induced, by his own destitute situation, to settle, taking his negotiable note payable at a disl ant day for the balance due; — it was holden that the father was not concluded by these proceedings, but might instantly maintain an action for the wages of the son, against the party with whom he originally contracted.</p> <p>A new trial will not be granted for the purpose of discrediting a witness by shewing contradictory testimony from his own deposition given at an early stage of the same cause; the deposition being on the tiles of the Court, but accidentally omitted to be read.</p>

In this action, which was assumpsit, the defendant was charged in the first count as indorser of a note of hand, duly presented for payment at its maturity, and notice given ; — in the second count, the plaintiff alleged diligent but ineffectual search for the maker; and due notice to the defendant ; — the third count charged him as guarantor of the note ; — and the others were the common money counts. .The note was in these words, — “ Portland, Sept. “28, 1819.

This was assumpsit on an award made. Jipril 7, 1823, under a parol submission of all demands, entered into Jan. 12, 1822 ; and was tried upon the general issue before Smith, J. in the Court below, from which it came up by exceptions taken by the plaintiff to a nonsuit ordered, proforma, by the Judge.

In this action, which was assumpsit, the writ contained two principal counts; — one being for monies paid for the support of the defendant’s wife as a pauper, she being found in Jilna, in want of immediate relief, and for monies paid to the town of Dresden, for a judgment rendered against the plaintiffs for the like cause ; —and the other being for the price of a pew in a meeting house erected by the plaintiffs, which was struck off at vendue to the defendant, averring the…

<p>The Court,in the exercise of its dieretion, will not grant a review on petition, where the object is merely to discredict a witness who testified at the trial; — nor because one of the jury was not impartial, or was hostile in his feelings to the petitioner, if this fact was known to the petitioner before the trial; — nor because a juror had expressed a general opinion of the cause before the trial, if it appear that he had formed no judgment of the merits, and stood indifferent between the parties.</p> <p>On such an application the juror ought to be called, to explain his own feelings and declarations, and he may be examined generally in support of the verdict.</p>

In this action, which was tried before the Chief Justice at the sittings after this term, a question was moved by Orr for the defendant, respecting his right to costs since the appeal ; and Mien, for the plaintiffs opposing the claim of costs, the Chief Justice reserved the point for consultation, and in the following term at Augusta the opinion of the Court was given and the case stated as follows, by

In assumpsit for fees as attorney at law, the defendant pleaded the statute of limitations in bar of the action.

This actioD, which was assumpsit for money laid out and expended, was tried upon the general issue in the Court of Common Pleas before Smith J. and came up by writ of error upon exceptions taken to his opinion.

<p>Where a petition for a road was altered after its signature, and one of the petitioners, being sued for his proportion of the expense incurred in prosecuting it, claimed to be absolved from the contract on the ground of the alteration, it is for the jury to determine whether the alteration was material.</p> <p>Where a payment has been made by several, from a joint fund, they may join in an action for reimbursement.</p> <p>An agreement made pending a suit, that it shall abide the event of another action, cannot be set up as a bar to such suit, if the party afterwards chooses to proceed.</p>

This action, which was'a writ of right, was in effect a contest between the Proprietors of the Kennebec purchase, demandants, and the Pejepscot Proprietors, tenants, concerning the western limits of the Plymouth patent, so called.

In a complaint under the statute for the support and regulation of mills, against the defendant for flowing the lands of the complainant, the defendant, among other things, pleaded that on the first day of March 1783, the proprietors of the Kennebec purchase, being seised of all the land in question, granted by their deed, which is lost, to James Bowdoin, whose estate he has, the right to erect, keep up, and maintain the dam mentioned in the complaint, and to flow the land…

This was a writ of entry in which possession was demanded of a lot described as £c lot No. 4, on Bullen’s plan.” The tenant owned the adjoining lot numbered three on the same plan; and the question was, whether a part of the land inclosed by the tenant, belonged to the latter lot, or to the former.

<p>The authority given by St at. 1796, ch. 58, sec. 3, \_Stat. 1821, ch. 118, see. 24] to the Courts of Sessions to make assessments for the opening and repairing of highways in townships not incorporated, relates only to highways laid out by the order of such Courts.</p> <p>Where the Court of Sessions taxed lands in a plantation for the repair of a road laid out. by the State, and not by the Court, their proceedings wore holdon merely void ; — and the lands having been sold by the county treasurer for nonpayment of the tax, and redeemed by the owner, it was held that he might, recover back the money so paid, in an action for money had and received against the county.</p>

This was a libel for divorce a mensa et thoro for the cruelty of the husband; who did not appear to answer to the libel. was proceeding to offer evidence of the acts of cruely charged in the libel, when the Court called on him for proof of the marriage. He cited Hill v. Hill 2 Mass. 150. to shew that it was not the practice to offer proof of this fact, unless it were denied.

This cause, which was assumpsit for the support of a pauper, came up to this Court upon exceptions taken to the opinion of Smith J. before whom it was tried in the Court below. The pauper was the wife of Jeremiah Ilodgdon, Jr. whose lawful settlement was in Brickfield, until .March 21, 1821. On that day he resided and had his home in Lewiston, where he had dwelt for more than a year previous, without having personally received supplies from any town as a pauper.

<p>This was a writ of entry, in which the demandants claimed five ninths of an estate formerly belonging to their ancestor, Charles Webber, of which estate they allege that he died seised. The tenants pleaded that the ancestor, by Ms four deeds duly executed and delivered, in his life time, conveyed the premises to Jeremiah Webber his son, who died seised of the,same, and from Whom the premises descended to the tenants, his children and heirs at law. These facts were traversed, and issue taken thereon.</p> <p>At the trial of this issue, before Weston J. the tenants produced a deed, bearing date’ June 3, 1809, in the handwriting of Jeremiah Webber, and purporting to be a conveyance to him from his father, Charleé Webber, of his homestead farm, for the consideration of 4000 dollars ; — and proved that the father called on a Justice of the Peace with the deed, in the absence of the son, the grantee, and in presence of the Justice and of another witness, executed the deed with the usual formalities, and after the acknowledgment was certified thereon by the Justice, the grantor took the deed, and returned home.</p> <p>They also proved that Charles and his son Jeremiah were partners in trade, transacting business in a store on the homestead;— that the papers and money of the firm were deposited in a trunk in the store, of which the father kept the key; — that Jeremiah was the active partner, who transacted Imost of the business of the firm, the father being in the habit of sitting in the store and keeping the keys ; — that when the son had occasion to go to the trunk for the notes of the firm, which were kept there, or to pay or deposit money, he applied to his father for the key, which was regularly returned as soon as such object was accomplished; — that the father was tenacious of the keys, and frequently declared that he meant to hold the purse strings as long as he lived ; and that the' keys were about his person when he died.</p> <p>It further appeared that on the 28th day of February 1814, the father called one person into the store, and the son called another, to witness the execution of certain other deeds ; — that when the witnesses came into the store the father and son were together ;— that the son took up ten or twelve deeds, which were in his own handwriting, unfolded them, and laid them down for his father to sign, which he did, and acknowledged them before one of the witnesses who was a magistrate ; after which they were subscribed by the witnesses, the acknowledgements certified, and the deeds taken up and folded by the son, and wrapped in a piece of brown paper ; — that the old gentleman then took from his pocket the key of the trunk and handed it to his son, who deposited the deeds in the trunk, locked it, and returned the key to his father. Nothing was said to the witnesses touching the contents of the deeds. They only saw that one was to Charles Jarvis Webber ; and they identified three others which were produced at the trial. These deeds, and the deed of June 3, 1809, were found in the desk of the father, after his decease ; and on the wrapper was written — “ Charles Webber’s deed to his son, not tobe opened “ till after his death.”</p> <p>There was also evidence to shew that the son lived with the father, and assisted in the management of the farm ; — that the father sometimes called the farm Jeremiah’s ; and that he once refused to sell a part of it, without his son’s consent, saying he had given him a deed. And there was other evidence adduced by the demandants, to shew that the deeds never were delivered to the grantees, hut remained always under the control of the grantor ; after whose decease they were put on record.</p> <p>The tenants then offered to prove the declarations of the grantor at several times, and to different persons, that he had disposed of his property hy deed, and what provision he had made for his children by his first wife ; that he intended Jeremiah should have the residue ; and that the Judge of Probate should have nothing to do with his estate, &c. — all tending to shew that he considered his estate as finally disposed of by the deeds in evidence.</p> <p>The Judge ruled that any declarations of the father, tending to shew the nature of his possession of the land which he occupied till his death, and whether he claimed the estate thus occupied in his own right, or as tenant to his son, were admissible ; but the evidence last offered, being objected to, he rejected. He also instructed the jury that the burden of proof was upon the tenants, who ought to satisfy them that the deeds were actually delivered by the grantor, in his lifetime, to the grantee, or to some other person for his use, with intent to pass the estate therein described. If this had been done, they would find for the tenants. But if they believed, from all the testimony, that the deeds never were delivered by the grantor to the grantee with intent to pass the estate, but only for the purpose of depositing them in a place of safety as the agent of the grantor, and that this purpose was clearly expressed and made known by the grantor to the grantee, at the time, then their verdict ought to be for the demandants ; for whom they accordingly found. And the questions upon the admissibility of the rejected evidence, and the correctness of his instructions to the jury, were reserved by the Judge for the consideration of the whole Court.</p> <p>said that the principal question-being upon the. delivery of the deeds, all evidence of the intent of the grantor was admissible, including his declarations as well after as before their execution. It was not a question between first and second purchasers, where the declarations of the grantor after making the second deed are inadmissible for another reason, as disturbing vested rights ; but the evidence offered went only to confirm and effectuate the prior acts of the grantor ; and his declarations injured no person but himself, he being the only party in adverse interest, during the period when the declarations were made. And he commented on the evidence reported by the Judge, as shewing a sufficient delivery of the deeds; and cited Bridge v. Eggleston 14 Mass. 245. Verplankv. Sterry 12 Johns. 536. 1 Phil. Ev. 209, 418, note a. 421. Ivatv. Finch 1 Taunt. 141. Bartlett v. Delpral 4 Mass. 702. Clark v. Waite 12 Mass. 439. 5 Johns. 412. Wheelwright & al. v. Wheelwright 2 Mass. 447. Hatch & al. v. Hatch & al. 9 Mass. 307. 13 Johns. 285.</p> <p>replied that the intent of the grantor, which alone gives character to his actions, was properly left to the jury ; and by them had been conclusively settled against the tenants. Nor could it he found otherwise ; — for it is essential to the delivery of a deed, that it be voluntarily placed out of the control of the grantor. Fairbanks u. Metcalf 8 Mass. 230.</p> <p>The declarations of the grantor, not accompanying the act of delivery, were clearly inadmissible, being at best but hearsay. And it is not a sound rule that any confessions or admissions may be received which appear contrary to the interest of the party making them ; because the real interest of the party cannot always be apparent to the Court. On another ground also, they were properly rejected, as - going to prove a transfer of real estate, which, if transferred at all, must have been by some other conveyance, the deeds read in the case being insufficient, for want of delivery. Where the grantor is a party to the suit, his declarations are not admitted to prove his own deed, but the subscribing witnesses must be called ; — a fortiori they cannot be received where he is not a party, and where no fraud is imputed to him, as in the case at bar. Fox v. Rcil 3 Johns. 377. Jackson r. Knijfen 2 Johns. 31.</p>

Assumpsit by the plaintiffs as indorsees, against the defendant as drawer, of a bill of exchange, of the following tenor, — rviz— “ $445. Sixty days from date and grace, pay to the order of “ Messrs.

Upon the revision of the laws during the session of the legislature in the winter of 1831, the former statutes for the relief of poor debtors in prison were included in the general act, by which most of the statutes of Massachusetts, so far as they related to this Stale, were repealed.

In this action, which was assumpsit, the first count in the writ ivas upon a promissory note dated at Miramichi, June 19, 1819, signed by John Lane, and payable to the plaintiff or his order on demand. Tn the second count it was alleged that Lane and Lend-a better, the other defendant, were partners under the name and firm of John Lane, under which name they made the note declared on. There was also a count for labor done. The defendant Lane was defaulted.

<p>Where the selectmen of a town drew an order in favor of a pauper on one of the inhabitants, for supplies to be furnished to the pauper, which the drawee did not accept, but the supplies were voluntarily advanced by another person, who took up the order; — it was holden that these supplies were not “ received from some town” within the meaning of Stat. 1821, oh. 122, sec. 2, the person who advanced them not having any remedy on the town for reimbursement.</p>

This case came before the Court upon exceptions to the opinion of Smith J. in the Court below, in overruling a motion there made by the defendant in arrest of judgment. The action was trespass against the sheriff of this county, brought by the administrator on the estate of James Hutchins, deceased, for taking a yoke of oxen, alleged in the writ to be the property of the deceased, and of the value of forty dollars.

This defendant was indicted for that with force and arms, to wit, with a knife, axe and saw, and other offensive weapons, unlawfully, maliciously, and with intent to injure one R. S. he broke and entered his inclosure, and girdled, mutilated, and destroyed thirty of his apple trees &c. against the peace.

Jlssmnpsit for the price óf ten barrels of pork, sold and delivered to the defendant.

<p>Where cattle were leased for a term of years, to be taken back by the owner, within the term, if he should think them unsafe in the hands of the lessee; it was held that the lessor could not reclaim them without notice.</p> <p>And where cattle thus leased, wore seized under an execution against the lessee, it was held that the lessor could not maintain replevin for them, he not having the right of immediate possession.</p> <p>Leave to amend is granted at the discretion of the Court; and the exercise of this discretion cannot be impeached by a bill of exceptions.</p>

This was a writ of entry, in which the demandant counted on his own seisin, and a disseisin by the tenant; who pleaded in bar that the demandant, being seised of the premises, by his deed of Feb. 10, 1821, bargained, sold and conveyed the same to one William Grant in fee. The demandant replied that at the time of making that deed he was disseised of the premises by one Henry H. Snow, and traversed his own seisin; — on which issue was taken.

This was a writ of entry on the demandant’s own seisin and a disseisin by the tenants, of lands in Bangor; and it came before the Court upon a case stated by the parties, containing the following facts.

In this case, which was assumpsit for the expenses of supporting a pauper, and came up, by exceptions, from the Court below, —the only question was — whether the notice was sufficient, it being signed — “ Isaac Wheeler, chairman of the selectmen of said ££ Garland.'” objected that it did not appear that the notice was signed by a majority of the overseers of the poor, nor by their order, nor by any person in their behalf.

<p>This was assumpsit, on a written promise of the defendants to deliver certain specific articles at the plaintiff’s house ; and came before this Court upon exceptions taken by the defendants to the opinion of Perham J. in the Court below.</p> <p>The defendants pleaded in bar, that the defendant, John Andrews, had been summoned as trustee of the plaintiff, in a foreign attachment, and that judgment was rendered against him in the Court of Common Pleas at January term 1823, by default, and execution awarded ; by which judgment the debt was bound and payable to the plaintiff’s creditor.</p> <p>The plaintiff replied that the execution which issued in that case being returned unsatisfied, the creditor sued out a writ of scire facias against John Andrews, who appeared and submitted himself to examination under oath, pending the present action, and answered that he had no goods, effects or credits of the plaintiff in his hands ; and that the Court of Common Pleas, at the June term 1824, adjudged him not trustee of the plaintiff, and he was thereupon discharged ; — to which the defendant answered by a general demurrer.</p> <p>It appeared that after the filing of the plea, this cause had been continued, in order that the scire facias, which was then pending, might be determined ; after which the pleadings were closed, as above stated.</p> <p>contended that when this suit was commenced, the plaintiff had no ground of action, his effects in the hands of John Andrews, to the full amount of his claim, being bound by the judgment in the foreign attachment, which was then in full force. ¡Stevens v. Gaylord 11 Mass. 265. Jewett v. Bacon 6 Mass. 61. And if not, yet no costs were taxable for the plaintiff while the scire facias was pending.</p> <p>was stopped] by the Court ; whose opinion was delivered by</p>

This was debt for a penalty incurred under Stat. 1821, ch. 168, sec. 1, for unlawfully converting to the defendant’s own use a log of the plaintiffs, lying in Penobscot river. At the trial before Perham J. in the Court below, the plaintiffs proved that one Patten, seeing the log floating down the river, conveyed it on shore, and sold it to the defendant, telling him at the same time by what means he became possessed of the log.

A verdict having been returned for the plaintiffs in this cause, the defendant moved that it be set aside, for the alleged prejudice and partiality of one of the jurors.

This was assumpsit for tbe support of Celia Basford, a pauper, wife of John Basford, from Jan. 23,1821, to Jlpril 2,1822; — and came before the Court upon exceptions taken by the defendants to the opinion of Smith J. in the Court below.

<p>This was a writ of entry to recover possession of certain lands-in Etna; and came before the Court upon a case stated by the parties, as follows.</p> <p>Gen. Crosby, being, the proprietor of township No. 4, in the second range north of the Waldo patent, now called Etna, by his heed dated Dec. 15, 1810, mortgaged the south half of the-township to Mr. Gray. — and afterwards, Jan. 16,1812, mortgaged the remaining half to the Penobscot bank; which last mortgage was, prior to 1820, assigned to Mr. Gray and Mr. Williams, in the proportion of four fifths to Gray, and one fifth to Williams. Gen. Crosby, being unable to pay the mortgages, afterwards ■released his equity of redemption.</p> <p>January 10, 1820, the parties divided that portion which had been mortgaged to the bank, and which they held in common ; and Gray made to Williams a deed of release and quitclaim of the demanded premises, with covenants that they were free of all incumbrances by him made, and of warranty against the grantor and his heirs, and all persons claiming under them ; — and Williams made a sipiilar deed to Gray of the residue of the land.</p> <p>The State taxes upon the whole township for the years 1812 to 1818 inclusive, amounting to $41,09 being wholly unpaid, it was sold by the sheriff of the county January 4, 1819, under a warrant from the treasurer, pursuant to the statute, to Hill & McLaughlin, they being the highest bidders, for $61,10, being the amount of the taxes and charges of sale ; and a deed was made to the purchasers, conveying the township to them and their heirs, subject to the right of the proprietors to redeem the land, by payment ofthe money at any time within two years.</p> <p>March 13, 1820, an agent of Mr. Gray came to Hill & McLaughlin professedly to redeem the land ; and paid them the amount of their claim. Whereupon they executed a deed to Gray, prepared by the agent, by which they “ sold, released and quitclaimed” to him all the right, title, interest and claim which they had to the township by virtue of their deed from the sheriff. Under this deed the tenant now claimed to hold the land.</p> <p>submitted their arguments in writing, to the following effect.</p> <p>Arguments for the demandant.</p> <p>1. No title passed to the tenant in the demandant's land, by the deed of Hill & McLaughlin to him. The sheriff’s deed to them reserves a right of redemption to the proprietors of the land. This reservation is a substantive part of the deed, in its operation on the rights of the demandant. Of whom, by this reservation, was he to redeem his land ? Not of the assignee of Hill & McLaughlin, but of them personally, or their heirs. Otherwise, the owner of land might always be defeated of his right of redemption by a succession of assignments or releases, and thus be deprived of his land. The purchaser from the sheriff must therefore retain the capacity to release to the owner, till the time of redemption expires; and consequently none but the owner can redeem. It follows that by Hill & McLaughlin’s deed to the tenant, no estate passed in the demandant’s land.</p> <p>2. If the joint right to redeem the whole tract sold by the sheriff, was not severed by the partition deeds of the parties, so that Hill & McLaughlin were obliged to release to each his share ; then their deed to Gray would operate as a confirmation of the demandant’s title to an estate in fee under him. , And such was the nature of the incumbrance that they were not obliged thus to release to the respective owners in parcels. And if either or both the parties had a right to tender the whole sum and demand a deed of release, then the demandant is entitled to the benefit, of the redemption; for even an estate held by two joint purchasers under a disseisor, and of course any other joint right, would be confirmed by a deed of confirmation from the disseisee to one of them. Co. Lit. 297. Here the parties had a joint right to redeem the whole tract, and therefore a deed to one, discharging the incumbrance, shall avail the other; the party making the payment having a right to a contribution from the other for the money advanced.</p> <p>3. But as between these parties, the deed of the tenant to the demandant, of Jan. 10,1820, conveyed a several right of redemption. It is a release and conveyance of all his title and interest. Now the right of redemption existed at the time of the execution of the deed; and if so, then it passed, as .fully as any other right in the land. The tenant is therefore estopped by the deed to say that he had no such right, or that he afterwards acquired it. And he is equally estopped by his covenant to warrant and defend to the demandant the very title he now claims, against all persons claiming under him and his heirs. Co. Lit. 47. (X) 4 Com. Dig. 85, tit. Estoppel E. 10. Trevivanv. Lawrence & al. 1 Salk. 216,</p> <p>Arguments for the tenant.</p> <p>1. By the St at. 1785, ch. 70, to which the authority of the sheriff is referred, he is to sell the land, and execute a deed to the purchaser and his heirs and assigns, saving to the proprietor a right of redemption; to whom, on payment of the money, the land is to be re-conveyed by the purchaser. The alienation of the estate is involuntary, by operation of law; but the rights of the parties are the same as if the transaction were voluntary, and between themselves; in which case the purchaser would take a fee simple conditional; liable to be defeated on payment of the sum agreed. In this latter case the purchaser might alien the estate at" his pleasure, subject to the condition; such being the attribute of every fee simple. And there is no difference, whether the estate be acquired by voluntary grant, or by force of the statute. The owner, by suffering his land to be thus bur-thened, in effect mortgages it for the amount of the tax; and the difficulty of redeeming it after successive assignments, is no more than is incident to every mortgage. The estate, therefore, which Hill & McLaughlin took was alienable, and of course it passed to their grantee. Rising v. Granger 1 Mass. 47. Gilman v. Brown 1 Mason 212 — 218.</p> <p>2. It appears that the tenant owned at least one half the township in severalty, and yet the tax is upon the whole tract, in one entire sum. Had this been a tax assessed by town officers in a gross sum upon a tract of land held in severalty by different owners, whose deeds were recorded, it would have been illegal; for in such case no one could relieve his own land, without paying the debt of his neighbor also. The taxes in the present case being imposed by the sovereign power of the State, must be taken with reference to the acknowledged rights of the citizens in other and similar cases; which can only be done by admitting each owner in severalty to redeem his own land by paying his proportion of the tax. If therefore the tenant had been redeeming his own land only, he would have taken a deed of his own part of the tract. But as he took a regular conveyance of the whole, his intent obviously was to acquire the right of his grantors to the whole estate. The passage cited from Co. Lit. 297, only means that the release of the disseisee to one jointenant shall enure to both as against him; but not that it shall effect their lights as against each other.</p> <p>3. If Mr. Gray stands in the place of Hill & McLaughlin, the demandant cannot have the land, on his own principles, without first tendering his proportion of the taxes. Had he done this, and a reconveyance been refused him, his remedy would have been plain by bill in equity, in which case the real merits of the contest would be opened, and both parties be compelled todo equity. For if the purchase from Hill & McLaughlin was a redemption of the land, it was so as to them alone. It still remained equitably charged with the lien in the hands of the tenant; who ought to be regarded in as favorable a light as an equitable mortgagee by deposit of title deeds; — 9 Fes. 115. 2 Fes. & Beame IQ, 83. Russell v. Russell 1 Bro. Ch. Ca. 270; — or as a surety who pays the debt of his principal, and takes an assignment of the debt, and of the mortgage which the principal had given to secure it. Norton v. Soule 2 Greenl. 341. See also Davis v. Maynard 9 Mass. 242. Cary v. Prentiss 7 Mass. 63. Parsons v. Welles 17 Mass. 419. Clason & al. v. Morris 10 Johns. 524.</p> <p>As to the estoppel, — it must not work injustice. The doctrine is conceived to apply only to the cases where one having no estate, undertakes to convey, — or where one undertakes to convey a greater estate than he had at the time. The universal administration of the rule would work great mischief. As if A sells land to B, with warranty; and G, a creditor of B, extends his execution upon it, and thus acquires an absolute title; and afterwards sells it again to A; can B, claim it of A, by estoppel ? The reasonable limitation of the rule would seem to require that the intent of the parties at the time of the conveyance, should be carried into effect. Now their obvious intent, by the deeds of partition in the present case, was nothing more than to designate the portions which each should hold in severalty, and to protect each one against titles then subsisting in or derived from the other; leaving lights unforeseen, and subsequently acquired, to their unrestrained operation.</p>

In this case, a verdict being returned in favor of the defendant, who was a deputy of the sheriff of this county, and was sued in this action for an alleged misfeasance in his office, the plaintiff moved the Court to set aside the verdict and grant him a new trial, because, the panel not being full, the sheriff returned two talesmen, who sat in the trial.

<p>In .this cause the general issue was pleaded and joined, after the plaintiff’s attorney had informed the counsel for the defendant that the writ was duly indorsed. But on opening the cause, to the jury before Perham J. it being discovered that this information ivas erroneous, the defendant’s counsel moved the Court that the plaintiff be nonsuited for want of an indorsement on his writ. This motion the Judge overruled, and permitted the counsel for the plaintiff to indorse the writ. To which the defendant took exceptions, pursuant to the statute.</p> <p>contended that the plaintiff had no right to call on the defendant to answer, till he exhibited a writ duly indorsed according to the statute. Failing to do this, it was the duty of the Court to nonsuit him, on motion made at any time during the first term. This remedy was not waived by pleading over ; especially where, as in this case, it was occasioned by the mistake of the plaintff’s own attorney. And the offer to indorse the writ, during the trial, cannot avail without the consent of the defendant. Ely v. Forward 7 Mass. 25.</p> <p>contended that the right was waived by pleading to the action ; — Livermore v. Boswell 4 Mass. 437. And he objected that the cause was improperly brought here by exceptions ; the sum demanded in damages being large enough to give the right of appeal. The mistake into which the defendant’s counsel were led in the Court below was one to which he was no party ; and it was no subject for the interference of this Court, but only for adjustment among the counsel who participated in it.</p>

This case, which was assumpsit for the support of a pauper, was brought up by exceptions alleged by the defendants to the opinion of Perham J. before whom it was tried in the Court below. It was submitted without argument; and the facts are stated in the opinion of the Court, as delivered by

<p>This was assumpsit for the support of Miriam Crocket, a pauper, whose settlement in Sebee was said to be derived from her father, who was an inhabitant of that town at its incorporation in 1811.</p> <p>At the trial before Smith J. in the Court below, the father of the pauper testified that he removed from Sumner to Sebee in January 1811; — that during his absence from home in the preceding summer, his wife, as she told him, put Miriam out to live with Calvin Bisbee, in Sumner, till she should be eighteen years of age, he engaging to treat her as one of his own children; — that he accordingly left her with Bisbee, never expecting to have any more control over her; and had never seen her since. He believed she was born in 1800, but the town records of Sumner, he said, would tell.</p> <p>The said Bisbee testified that he took the girl in 1810, to live With him till she was eighteen years old, or so long as they should be mutually satisfied; — that she was to fare as one of his own children; — but that the father had a right to take her away at his pleasure, and the witness had the same right to send her away; —that she did live with him till she was eighteen, after which she had received her own earnings, — that she was born and had always dwelt in Sumner, except a short residence in Buckjield; and had never been in Sebee.</p> <p>Another witness testified that about the same time the mother of the pauper offered her to him on the same terms; and that Bisbee took her as he testified.</p> <p>The mother of the pauper testified that she gave the child to Bisbee, never expecting to have any farther authority or control over her, and not doubting but he would consider her in all respects as his adopted child; that he agreed so to treat her; — that she was then over eleven years old; — and that she had never seen her since.</p> <p>The defendants alleged that the pauper was of age at the passage of the law of March 21, 1821, and thus capable of acquiring a settlement under it. To this point the plaintiffs called the town clerk of Sumner, who produced a book which he received from his predecessor in office, containing memoranda of sundry births and marriages in that town; and which was delivered to him as an official record, but contained no title or attestation of its character, nor any certificate shewing by whom the entries in it were made. The admission of this book was objected to, but the Judge overruled the objection. The book contained the name of Miriam Crocket, as having been born June 27, 1800; but there was no evidence shewing when or by whom it was recorded.</p> <p>The Judge upon this evidence instructed the jury that if they were satisfied that the pauper was not of age on the 21st of March, 1821, under the circumstances of this case she was not emancipated, but followed the settlement of her father. And they found for the plaintiffs. To which the defendants alleged exceptions, pursuant to the statute.</p> <p>maintained these two positions; — 1st. That the book was not admissible in evidence, without previous proof of its authenticity as a public record, or that the entries in it were in the hand writing of the town clerk. Highland Turnpike Co. v. Mc Kean 10 Johns. 154. —2d. That the pauper was capable of gaining a settlement by residence in Sumner at the passage of the act of March 21, 1821, she having been emancipated by her father, and not being proved to be a minor.</p> <p>contended that the book, being referred to in the deposition of the father, was placed at least on the footing of an entry in the family bible, or any other domestic memorandum; and so was intitled to inspection. But it was of a higher grade of evidence, being proved to be kept by the town clerk as a public registry of marriages and births.</p> <p>As to emancipation, this exists only where the child is placed beyond the reach and control of the parent. But in this case it was not so. The person with whom she dwelt expressly disclaimed any exclusive right to her services or the custody of her person. And if he once had such right, it expired on her attaining the age of eighteen years, when all the authority of the father revived. Her subsequent care of herself and receiving her own earnings creates no difference in the case. Somerset v. Dighton 12 Mass. 383.</p>

ÍN tliis action, which was trespass vi et minis against the assessors of the Proprietors of the Fryeburg Canal, the only question raised was upon the validity of their assessment of a tax upon the plaintiff as one of the corporation, under a private statute passed June 19, 1819.

.Assumpsit for supplies furnished to one Esther Smith, a pauper, whose settlement was alleged to be in Buckfield.

Assumpsit by the indorsee against the drawer of a bill of exchange, of the following tenor ; — “Mew-Orleans, May 22, 1822. u In .Boston, sixty days after sight of this first of exchange, (sec- ££ ond, third, and fourth unpaid,) pay to William G. Enees, or “ order, five hundred and thirty eight dollars and seventy one ££ cents, value received, and charge the same to account of brig ££ Susan, with or without further advice, from your obedient ££ servant, JohnFarrell.” It was…

<p>This was a writ of entry sur disseisin, brought by the demand-ants as heirs at law of Samuel Lord, against the tenant, who was sole heir of Mark Lord, son of the said Samuel, and a devisee under his will; — and it came before the Court upon a case stated by the parties, in which the only question was,- — whether Mark Lord took an estate for life, or in fee, in the demanded premises, which were devised to him by his father.</p> <p>The testator devised a portion of his estate to his wife, during her natural life; — and in a subsequent part of the will devised the same estate to his son, in these words; — “ I give and bequeath to “ my son Mark Lord, my dwelling house, barn, and warehouse, “ on the same side of the highway with my dwelling house, with “ the garden and all the lands adjoining, on the same side of the “ way, after the decease of my well beloved wife.” — He also, in another part of the will, gave to each of the children of his late son Samuel, a certain sum, which u is his proportion of my estate.” The other parts of the will contained nothing material to the question.</p> <p>hereupon contended that Mark Lord, the devisee, took only an estate for life. The heir is not to be divested of his rights, unless such appear plainly and beyond doubt to be the intent of the testator. Rowe v. Yewd 2 JVew Rep. 214. Willes 141. Oro. Car. 147, 149. But the clause in the will under which the tenant claims, contains nothing which shews an intent to create any other or greater estate than a tenancy for life. To evince the contrary it must appear either that the de-visee is charged with some burthen, in consideration of receiving a fee, — or that the testator was ignorant of the force of the language used, and knew not how to describe a fee, — or that the introductory clause in which he professes to dispose of his worldly estate, and the creation of a tenancy for life of the wife, manifest such intent. As to the two first, he argued from the different parts of the will that there was nothing to support them. As to the introductory clause, very little if any reliance is placed upon it. Cook v. Holmes.& ux. 11 Mass..528. And to shew that the language of the devise itself is not to be extended beyond its legal import, he cited 1 Roberts on Wills 432. Tanner v. Morse Cas. temp. Talbot 284. Hogan v. Jackson Cowp. 299. Gaskinv. Gas-kin Cowp. 657. Baker v. Stocker 5 D. & E. 13. Batesv. Clayton 8 East 147. Brewry v. Bacon 14 East 312. 6 Cruise’s Big. 231 — 240. Wñght v. Sidebotham 2 Boug. 759. Ferries & ux v.-Smithfyals. 17 Johns. 281.</p> <p>Although anciently, in England, and for reasons originating in that country, wills have received a rigid construction in favor of the heir; yet in this country as well as latterly in that, the object of Judges has been to ascertain and support the intent of the testator. Richardson v. Jfoyes 2 Mass. 60. 11 Mass. 528. Here the testator made a bequest to the children of one of his sons, as their proportion of his estate, which shews his intent to leave no reversionary interest for them to inherit; — and he has made no devise over, which he certainly would have done if he intended to give Mark only an estate for life. He also has.directed the devisee to pay certain legacies; and upon the principle that the devisor always intends a benefit to the devisee, this direction, connected with the terms of the gift, shew an intent to create a fee. Bowsv. Blacket Cowp. 235.</p>

<p>This was an action of trespass for breaking the close of the plaintiffs, who styled themselves, in the original writ, “ JohnJln-derson and Isaac Bracket, both of Alfred, yeomen.” After the cause came into this Court, the plaintiffs moved for leave to amend their writ, by adding that they sued “ as deacons andover- “ seers of the society of shakers in said Alfred” which was granted, though objected to by the defendant.</p> <p>At the trial, which was before the Chief Justice, upon the plea of soil and freehold in the defendant, the plaintiffs offered as witnesses certain members of the same society of shakers of which they were deacons; to whose admission <the defendant objected, on the ground of their alleged interest in the event of the suit, it being one of the articles of their association that “ the u members should possess one joint interest” in all the tempor-alities of the church, and should be equally entitled to the use of the common property according to their several necessities; — hut upon the witnesses executing in Court a release to the plaintiffs of all their interest in this action, and in the damages which might be recovered in it, and the plaintiffs executing to them a release from all obligation to pay any costs which the defendants might recover against the plaintiffs in this action; —they were admitted to testify.</p> <p>The plaintiffs then read a deed from Barbara Brown to Gowen Wilson, Joshua Harding, and Jonathan JVwell, styled deacons or overseers entrusted with the care and management of the estate and temporal interest of the family of shakers in Jllf fed, conveying the locus in quo to them .and their successors and assigns in trust for said family or society, for the support of the gospel among them, the relief of the poor, and their common support, and for other pious and charitable uses; — and then shewed from the records of the society, that the plaintiffs were their regular successors.</p> <p>The defendant contended that the title did not pass to the plaintiffs by this deed and by such succession; — and further objected that the plaintiffs had no right to maintain the action at this time, because it appeared by the book of records of the society, that while this action was pending, John Anderson had resigned the office of deacon, and others were appointed in his stead.</p> <p>Both these objections were overruled by the Chief Justice, and a verdict, under his instructions, was returned for the plaintiffs, subject to the opinion of the Court.</p> <p>objected first to’the amendment of the writ, which he said wholly changed the nature of the action, and was therefore inadmissible. It stood on a cause of action accrued to the plaintiffs in their own right, to which their executors would succeed as privies; but it was now changed to a title en autre, droit, the interest in which would pass to their successors in office. Haynes v. Morgan 3 Mass. 210.</p> <p>As to the witnesses, — they had a direct interest in the cause of action, being joint owners of the common fund, which would be increased or diminished by the result of this suit, and which their releases did not affect. Nor could the plaintiff’s release discharge their pecuniary liability to contribute to the expenses of the suit, for this the plaintiffs had no power to do. At most it was but a private undertaking of the plaintiffs to indemnify them; but cannot operate to discharge them from the common obligation to contribute to the common burthens. The principle of a community of interests and rights and liabilities, enters deeply into, and pervades the foundations of the religious faith of this society, and cannot be eradicated. Each witness, whether he executes a release or not, is still a member of the family, and entitled to a support from the. common stock; and if the suit is unsuccessful, that support is to be derived from a diminished fuptL</p> <p>The resignation of Jlnderson, be contended, ought to abate the suit, there being no provision by law for his successor to come in and prosecute it.</p> <p>But he insisted that the deacons or overseers of the shakers were not a corporation within the statute respecting grants to charitable uses, and so were incapable of taking in succession. There can be no church, without a parish; and as the shaker societies do not assume parochial forms, their deacons are not within the terms of the law, not being deacons of any churches. Boutelk v. Cowdin 9 Mass. 254. Further, in the construction of that statute, the intent of the legislature is to be gathered from the state of facts as they existed when the law was enacted; but at that time no such people as shakers were known; and the quak-ers or friends, so far from being objects of the fostering care of the government, were the subjects of its severest animadversions. It is not therefore to be supposed that the legislature would grant any new capacities to the officers of a people whom they were endeavoring to banish from the Commonwealth.</p> <p>As to the amendment, they said that it did not affect the action, which still remained the same as before ; it only designated the character in which they claimed damages and the persons to whom they were accountable. If they are compellable to account, they are trustees, and therefore are rightly described in the writ. If not, they are entitled to damages in their own right. But either way, it was of no importance. Kincaid v. Howe 10 Mass. 203. Leighton v. Leighton l Mass. 433. Besides, the granting of leave to amend is a discretionary act of the Judge, preparatory to the trial, and not during its pendency ; and if improperly exercised, it is nofopen, in this form, to the defendant’s objection, within the meaning of the statute. Haynes v. Morgan 8 Mass. 208.</p> <p>As to the witnesses ; — it would be strange if any persons could place themselves in such relations to each other as could not be changed even by themselves. Here they have executed mutual releases. If an agent acting for two persons release to one of them, he devolves no increased responsibility on the other ; but only assumes it himself; — and thus the rights of the plaintiffs against the society, remain now, as they were before, unaffected by the’release. But independent of the releases, there exists no compulsary power to enforce a contribution in the ' case. The covenant, by which all shakers are bound to each other, and which forms a part of this case, contains an express stipulation that the parties shall never resort to legal remedies against the society or its members. It is a perpetual bar, containing a for* mal surrender of their legal rights, and retaining a hold only on the consciences and religious principles of the parties. This also is consistent with law. All donations to the shakers and all the fruits of their common industry are expressly consecrated to eleemosynary purposes; and none but the donors can compel an execution of the trust. They are gifts in trust for the poor; but in such cases it is well known that no action lies, except by the donor or his heirs. Wells v. Lane 8 Johns. 462.</p> <p>Nor can the resignation of Anderson affect the suit. No case has been cited to shew that his successors may not come in and prosecute the suit to judgment. But if they cannot, yet he may, for his resignation of the office ought not to be taken as an abandonment of a cause then pending.</p> <p>The argument against the capacity of the plaintiffs to take by succession, they contended was not founded in law. Whatever may have been the severities exercised against this description of people when the law of Massachusetts was enacted, the principle in Maine is that of universal toleration. Every association of Christians for religious purposes is recognized as a church; and its presiding officers are made capable of taking in succession. Const, of Maine, bill of rights, art. 3. Stat. 1821, ch. 42, sec. 1, and ch. 135, sec. 10. And if it were not so, yet here is a conveyance in trust, to certain individuals and their successors ; and who these successors are, is a fact susceptible of proof as any other matter en pais. In this view of the case they may take as trustees at common law. Newhallv. Wheeler 7 Mass. 179.</p>

This was an action of trover for certain goods enumerated in the inventory of the estate of the late Jlndrm Burley, Esq ; and was tried upon the general issue, and a plea of the statute of limitations, before the Chief Justice, at the last September term. At the trial the following facts appeared.

In this case, which was trespass quare clausum, brought before a Justice of the peace, the plaintiff declared generally for breaking and entering his close in Kennebunk, without giving it any particular designation or description. The defendant pleaded title to the close before the Justice, who thereupon proceeded to take his recognizance to prosecute the suit in the Court of Common Pleas, pursuant to the statute.

<p>In this case, which was a bill in equity to redeem an estate mortgaged, the principal facts were as follows.</p> <p>The premises were originally mortgaged on the 18th day of .May 1814, by Peter and Theodore Littlefield, who were tenants in common, to Samuel Luni and Jeremiah Paul, to secure a joint debt of both the mortgagors, for the sum of four hundred dollars, due in six months with interest.</p> <p>Afterwards, July 16, 1816, their right inequity of redemption was sold to Edward A. Emerson, at a sheriff’s sale, in due course of law, by Mr. Paul, the defendant, who was a deputy sheriff, to satisfy two writs of execution in his hands against them in favor of another creditor.</p> <p>At October term 1816, of the Supreme Judicial Court, Luni and Paul recovered judgment upon their mortgage, for possession of the premises.</p> <p>February 22, 1817, Lmt conveyed all his interest in the premises to Edward A. Emerson.</p> <p>In July following, Mr. Emerson conveyed to the plaintiff one half of all the right in equity which belonged to the mortgagors, and which he had before purchased of Mr. Paul, at the sheriff’s sale, the condition in the deed not having been performed.</p> <p>Apluries habere facias having been duly issued on the judgment obtained by the mortgagees for possession of the premises, it was delivered July 13, 1818, to a coroner for service, by the present plaintiff, who was the attorney of the mortgagees in that suit. The coroner testified that on that day he gave possession of the land to Emerson and Paul, in presence of the mortgagor and his family ; and that afterwards having collected the bill of costs, he paid over the money to the present plaintiff, October 24, 1818; ■who, on the same day wrote the coroner’s return, bearing that date, and running in the usual form, — “By virtue of this precept I have delivered seisin and possession,” &c. which was then signed by the coroner. It did not appear that the plaintiff had any actual knowledge of the precise time when possession was delivered by the officer to the mortgagees ; but only that he knew that it had been done, and that he wrote the return at the officer’s request.</p> <p>May 22, 1819, Emerson conveyed to Paul, the defendant, in fee, all his right, title aruh interest in the land ; thus uniting in Paul the titles of mortgagor and mortgagee of half the premises. This conveyance the plaintiff treated as payment of one half of the debt, and accordingly, on the 5th day of October 1821, being less than three years after the date of the coroner’s return, tendered to the defendant two hundred and ninety dollars for the amount due to him, which being refused, the present bill was filed.</p> <p>contended that by the union in the defendant of both titles to one undivided moiety of the land, one-half of the debt was ipso facto extinguished ; and the plaintiff was thereupon entitled to redeem, upon payment of the residue. To this point he cited 2 Com. Dig. 676. Chancery 4 JV. 8, 9. 6 Com. Dig. 323. Suspension B. ib. 190. Release B. 6. Co. Lit. 280 a. 148 a. Litt. sec. 222, 543, 544. Thomas v. Thompson % Johns. 471. Ld. Compton v. Oxenden2 Ves. jr. 264. Selby v. Alston 2 Ves.jr. 339. Berry v. Usher 11 Ves. 90. 13 Ves. 62. St. Paul v. Ld. Dudley & Ward 15 Ves. 173. Forbes v. Moffatt 18 Ves. 384. Porter v. Millett 9 Mass. 101. Collins v. Torrcy 7 Johns. 278. Ritchie v. Williams 11 Mass. 50. Stevens v. Gaylord ib. 266. Winshipv. Bass 12.Mass. 199.</p> <p>• The officer’s return, he insisted, wus conclusive evidence of the time when possession was delivered ; and was not to be con-troled by parol testimony; nor could the officer now be permitted to amend it, as such amendment would impair the rights already vested in a third person. Neither could the parol evidence of what was done on the 13th day of July avail the defendant as an entry enpais for condition broken, because the evidence shewed that it was not so intended. To the conclusiveness of the return, Jie cited Purintonv. Loring 7Mass. 391. 6 Com. Dig. 242. Retorn G. Williams v. Brackett 8 Mass. 240. Davis v. Maynard 9 Mass. '247. Bott v. Burnell 11 Mass. 165.</p> <p>having at the opening of the case moved the Court to permit the officer to amend his return, by stating the true time when he delivered possession to the mortgagees, now argued that the amendment was in perfect consonance with established principles, as it did not go to contradict the return, but only to explain it. The return states that he had delivered possession, but not on what day this was done ; and to ascertain this day is the object sought. Nor would it affect the rights of strangers, the plaintiff claiming at that time to be a privy in estate, by his purchase in the preceding year. Thatcher & al. v. Miller 11 Mass. 413. If, however, this motion is not granted, the evidence shews an entry en pais July 13, 1818, in presence of the mortgagor, and with his assent; and by the lapse of three years from that time the mortgage is foreclosed.</p> <p>The union of titles in the defendant, he contended, was not to be construed to his injury ; but the mortgage was to be kept on foot as it originally stood, so long as it was plainly his intention, or his interest, that it should be so treated. Otherwise, the mortgagee to whom a mortgagor has executed a release of the land, must lose his remedy on the covenants in his mortgage deed ; and hold the land subject to all mesne attachments and incumbrances. But here the intent of the mortgagees evidently was to claim the benefit of the mortgage. Forbes v. Mojfatt 18 Ves. 384. Denn v. Wynkoop 8 Johns. 168. Norton®. Soule 2 Greenl. 341.</p> <p>But the plaintiff in this case is not, on any principle, entitled to redeem ; because nothing passed to him by his deed, it being a conveyance oí part of a right in equity, which was indivisible.</p>

UpoN a writ of error to the Court of Common Pleas, the case appeared to be thus:— The action was trespass, brought by Carle, the defendant in error, against Berry & al. before a Justice of the peace, for taking and carrying away ten of his mill-logs.

This was an action of trespass on the case, brought by the plaintiffs, who were booksellers in Boston, against the defendant, a printer in Hallowell, in which they alleged that they contracted with and paid the defendant for the printing an edition of Taylor’s Holy Living, to consist of one thousand copies and no more; the whole of which edition was to be delivered to the plaintiffs; but that the defendant, in violation of good faith, printed fifteen hundred copies of the…

This was a writ of entry dated Feb. 18, 1823, upon the seisin of the demandants within thirty years, for possession of one fifth part of two pieces of laud, containing' 58 acres more or less, formerly the estate of George Johnson, who was father of the feme demandant, and also of the tenant ; — and it was tried before Weston J. upon the general issue.

<p>The preparation of an alphabetical list of voters, pre vious to the annual meeting of a town for the choice of its officers, is not necessary to the validity of the election; the Slat. 1821, ch. 115, being in this respect merely directory.</p> <p>Where the record of a town states that certain persons were chosen to a certain officer without saying whether by ballot or otherwise, the presumption of law is that it was hr the legal mode.</p> <p>Where the inhabitants of a town, at their annual meeting, voted that their selectmen should also bo assessors, but did not elect them such by ballot, as the statute requires, and they were sworn into both offices; and afterwards, at an adjournment of the same meeting, they were regularly elected assessors by ballot, and proceeded to discharge the duties of their office as such, but were not sworn again; — it was holden that their neglect to be sworn after the valid election was a refusal of the office; but that their proceedings might be supported as the doings of selectmen, acting under the statute, in a vacancy of the office of assessors.</p> <p>If one of the inhabitants of a town absent himself, in order that he may not receive personal notice from the assessors to bring in a list of his taxable estate, where the known usage was to give notice in that method, he cannot afterwards object to the legality of his tax on that account.</p> <p>The words “ In the name of the State of Maine,” — and the sentence beginning with the words — “ it being this town’s proportion of a tax,” &c. in the form of the warrant for collecting taxes, in St at. 1821, ch. 116, sec. 17, are matters of form only, the omission of which does not vitiate the warrant.</p> <p>It is not necessary to the validity of a warrant for the collection of taxes, that it bo delivered' to the collector during the year for which ho and the assessors were elected; it being sufficient if they made and signed it while in office.</p>

This was an action of trespass on the case, in which the plaintiff alleged that the defendant had maliciously, and without probable cause, procured him and two other assessors of the town of Si undish to be indicted for not making out a correct alphabetical list of voters in said town previous to the annual meeting in March 1823; and for not being in session in some convenient place to receive evidence of the qualifications of persons whose names were not on such list; and…

This was an action of trespass quare clausum, fregit, in which the issues were — 1. not guilty ; — 2. that the close was the soil and freehold of Swell one of the defendants; — 3. that it was the… Held: certain lots in Bridgton, and among them the lots in question.

At the last May term, on opening this case, which was an appeal from a decree of the Judge of Probate, granted by virtue of a resolve of the legislature, it appeared that the appellants were sureties of Joshua Webb on his bond, as administrator on the estate of his father, Jonathan Webb, deceased ; — that the administrator had become insolvent; — that after his insolvency, viz. Sprite9, 1819, he was induced to settle an account at the Probate office by a decree of the Judge,…

<p>A vote of proprietors, authorising a committee to sell lands, empowers them also to make deeds, in the name of the proprietors.</p> <p>Of the form of a deed by a proprietors’ committee.</p>

This action was assumpsit, for the price of two pews in a neiv meeting house built by the plaintiffs.

This was a writ of error coram vobis, to the Court of Common Pleas, in which the question'was upon the validity of the assignment of a book debt.

This was an .action of assumpsit on a note of hand made by the defendant to Richard Burnham, the plaintiffs’ intestate, June 29, 1'816, for 324 dollars, payable on demand ; — and it came before this Court upon a case stated by the parties, containing the following facts.

In this case the question was upon the domicil of one Aaron Abbot, a pauper, on the 21st day oí March 1821.

This ivas an action of the case against the defendant, a deputy sheriff, for refusing to deliver up to the plaintiff an execution in his favor against one Plummer, upon tender of all his fees and expenses thereon ; and for not returning the same execution. At the trial, which was before the Chief Justice, the following facts appeared in evidence.

This was an action on the case, in which the defendant was charged, in the first count, with maliciously instituting and prosecuting an action against the plaintiff on certain notes of hand, (which had been deposited with him for safe keeping,) in the name of Thomas G. Clark, to whom they were payable, knowing the same had been paid.

In an action of assumpsit brought by the plaintiffs for money had and received by the defendant to their use, it appeared that in the course of his business as an attorney he had collected monies on divers securities due to Charles Nichols as treasurer of the town of Newcastle; and that the defendant had once admitted that there was due to Mr. Nichols as treasurer, ‡24 71, after deducting all sums paid and hills of costs charged to him in that capacity.

<p>In this case the defendant pleaded in abatement of the writ, that the officer who served it, after his appointment as deputy sheriff, was appointed and commissioned as a Justice of the peace, “ and took the oaths prescribed by the constitution and laws of this State, necessary to qualify him to act in that office,” and had ever since exercised the same, whereby his office of deputy sheriff became vacant, &c. To which the plaintiffs demurred.</p> <p>contended that on a plea in abatement the right de jure to an office could not be tried. The compatibility of the two offices is a constitutional question, deeply affecting the incumbent, and ought not to be examined in this collate»al way; much less decided against him, in a cause to which he is not a party, and where he has not the power to be heard. It is even doubted whether the rights of electors can be gone into upon a trial of the rights of the elected. 3 Burr. 1387 —but the Courts of this country and of Westminster Hall, seem to be agreed that the right to an office cannot be tried in any other way than by a quo warranto, or other process, in which the officer is a party. 3 Bac. Mr. 636, 647. Rex v. Gayer l Burr. 245. Cowp. 489, 507. 2 D. & E. 377. The people v. Collins' 7 Johns. 549. Mclnstry v. Tanner 9 Johns. 234. Fowler v. Beben 9 Mass. 234. ComHh v. Fowler 10 Mass. 290.</p> <p>insisted that the constitution had settled the question of compatibility, upon a fair construction of its provisions; and that having accepted the second commission, and taken the oath of office, the first was ipso facto vacated.</p>

In a writ of error to the Court of Common Pleas, upon exceptions filed there to the opinion of Smith J. the cage appeared to be thus:— Lowell, who was the original plaintiff, brought an action of the case before a Justice of the Peace, against the plaintiff in error, who is sheriff of this county, for the neglect of one Enoch W. Mams, his deputy, in not serving and returning a writ of attachment.

<p>The facts in this case are stated in the opinion of the Court, ivhich was delivered at June term in Kennebec, by</p>

This case having been tried again in this Court,[Vid. 2 GreenL 312,] the demandant regularly deduced his title to the demanded premises from William Molineaux, who held the same under a deed of the following tenor:— “ To all people unto whom these presents shall come: John “ Molineaux of Boston, in the county of Suffolk and commonwealth “ of 'Massachusetts, merchant, in the capacity of clerk to the pro- “ priety known by the name of the Twenty Associates of the “…

In this case, which was stated by the parties, the question was upon the domicil of one Charles Acorn, a pauper, non compos from his infancy, and now upwards of forty years of age. He always lived in the family of John Acorn, his father, whose residence and lawful settlement were in Waldoborough till the year 1816.

This was an action of assumpsit for the support of certain paupers. It was briefly argued by Thayer, for the plaintiff’s, and Jlbbot for the defendants. The facts are stated in the opinion of the Court, which was delivered at Jlugust term in Oxford, by

IN this case, which was an action of trespass quart clausum fregit, the question arose upon the construction of the plaintiff’s title deed, and the consequent location of the dividing line between his land and that of the defendant.

In each of these cases, which were libels for divorce a vinculo for adultery, the respondent pleaded in bar that the libellant had committed the crime of adultery with a person named in the plea, and with others to the respondent unknown; and relied on the provisions of Stat. 1821, ch. 71, sec. 4, which enacts that if it shall appear that both parties have been guilty of adultery, no divorce shall be decreed.

<p>This was an action for money had and received, at the trial of which, before Weston J. the following facts appeared.</p> <p>One John Carlton 2d, being indebted to the defendant in about 150 dollars in the year 1817, gave him an absolute deed of his farm, by way of security, taking back a writing some days after-wards, by which the defendant stipulated to reconvey to him the farm, on payment of his debt. This writing was never registered.</p> <p>Afterwards, in May 1819, the plaintiff, having an execution for $226,75 against Carlton, caused his right in equity of redemption of the same land to be seized and sold at a sheriff’s sale where it was struck off to the plaintiff himself for twenty-five dollars. On the day following this sale, it was agreed between the plaintiff, and the defendant, and Carlton, that the plaintiff should abandon his title under the levy, and discharge his execution, which he did; — the defendant giving a bond to Carlton, conditioned to re-convey the farm to him, upon his paying the defendant his debt, being $198 27, and the further sum of $261 73 in one year;1 — and the defendant giving another bond to the plaintiff, conditioned that if the plaintiff should, upon demand, after six months, pay the defendant the said sum of $19827, the defendant would thereupon, within one year from the date of the bond, either convey to the plaintiff all his title and interest in the farm, or refund to him the,sum so paid, and pay him the further sum of $261 73. The plaintiff never paid to the defendant the sum due to him as above, although, eighteen months after the execution of the bond, he was particularly requested by the defendant so to do, and to close the business; the defendant then offering to convey the land to the plaintiff, if he would pay him that sum.</p> <p>The bond made to the plaintiff was deposited with P. H. Wash-burn, Esq. it being agreed that if Col. Peter Chadwick, brother of the plaintiff, who held a note against the defendant due in July following, for about $160, should call on the defendant for payment, the bond should be given up to the defendant. And the defendant’s declarations were proved, that as long as the plaintiff procured his brother’s forbearance of calling for payment of the note due him, so long the bond should be good against the defendant. And it appeared that the plaintiff did procure such forbearance, and that the plaintiff finally paid the note to his brother, about the middle of JLyril 1822. Mr. Washburn testified that he should not have delivered up the bond to the plaintiff without receiving payment of the note due to his brother.</p> <p>The plaintiff further proved that the defendant conveyed the farm to Jonathan Carlton, March 15, 1822, for the consideration of five hundred dollars expressed in the deed.</p> <p>John Carlton 2d, being called by the defendant, testified that he had failed to comply with the condition on his part to be performed, as stated in the defendant’s bond to him; and that although the consideration expressed in the deed from the defendant to Jonathan Carlton was $500, yet in truth he paid only $203, being the amount due to the defendant. This part of his testimony was objected to by the counsel for the plaintiff, as contradicting the deed; but the Judge admitted it; and he received other evidence tending to shew that the farm, when sold by the defendant, was worth much more than the amount due to him.</p> <p>Upon this evidence the Judge directed a nonsuit, with leave to the plaintiff to move to set it aside, if, in the opinion of the Court, the action could be supported.</p> <p>now argued that the evidence reported was sufficient to maintain the action. He contended that the plaintiff had no remedy on the bond; for it was never in his possession within the year; and the first act was to be done by the defendant himself, by demanding the money, which he omitted to do. There being no debt due from the plaintiff, and he having no means of knowing that Carlton had not already paid the money, he was guilty of no neglect in not offering to pay it before demand; though from the peculiar terms of the condition the penalty was not forfeited. The bond therefore having become inoperative, the remedy Is open by this form of action, which is in the nature of a bill in equity. Appleton v. Crownin- , shield 8 Mass. 358. Stratton v. Rastall 2 TJ. & E. 366. It further is manifest from the evidence, that the defendant held the property merely as trustee for whom it might concern; and to compel the execution of such trust, this action is the proper remedy. Newhallv. Wheeler 7 Mass. 198. 16 Mass. 221.</p> <p>That the defendant has received money in trust for the plaintiff, sufficiently appears from the consideration in the deed, which he cannot be permitted to deny. Steele v. Adams 1 Greenl. 1. Schermerhorn v. Vanderheyden 1 Johns. 139. 7 Johns. 342. 2 H. Bl. 1249. The only exception to this rule is where the action is between the original parties to the deed, both of whom are equally conusant of the fact; — but here the plaintiff was no party to the conveyance; and to allow the defendant to contradict what he has put on record as true, under his hand and seal, is to permit him to practice fraud on the innocent.</p> <p>But if he had received no money for the property sold, or not so much as its value, yet he is accountable for all, which, in the exercise of common care, diligence, and good faith, he might have obtained. Floyd v. Day 3 Mass. 403. Randall v. Rich 11 Mass. 494. Heard v. Bradford 4 Mass. 326. And though the plaintiff has paid no money directly to the defendant, yet he has done what imposed on the defendant an equal obligation, by releasing his lien on the land, and discharging his execution. Mew-comb v. Bracket 16 Mass. 161. 8 Johns. 257. 14 Johns. 453.</p> <p>As the parties reduced their whole contract to writing, the only remedy is by action on the bond. Richards v. Killam 10 Mass. 239. 2 D. & E. 100. 2 Taunt. 145, 183. 1 Dane’s Jlbr. ch. 9, art. 22.</p> <p>If this remedy has failed, it is not the fault of the defendant. He has neither waived the contract, nor refused to perform any. of his stipulations. Eighteen months after it was made, he demanded his money of the plaintiff, and after waiting as much longer for payment, and waiting in vain, he conveyed the land, for the amount of his own debt, and no more.</p> <p>But if/the special contract were waived or rescinded by consent of parties, yet the plaintiff is not entitled in equity to recover. For if the land be considered as a fund for payment of the two debts, there was a duty for the plaintiff to perform, before he was entitled to the benefit of the fund; and this duty he not only neglected, but refused to comply with'. The defendant was therefore no longer bound to connect his debt with that of the plaintiff, but was at liberty to seek his own separate indemnity by a sale of the land.</p> <p>To shew the admissibility of parol evidence to prove the sum actually received, he cited Rex v. Scammonden 3D. & E. 474. Davenport v. Mason 15 Mass. 85. 2D. & E. 12. Maulé & Selw. 387. Wilkinson v. Scott 17 Mass. 249.</p> <p>And he contended that if the bond is 'to be treated as a nullity, then the contract is void, by the statute of frauds, being an entire contract, for the sale of land, and not in writing. 7 D. & E. 201. ’S Johns. 253.</p>

This was an action of assumpsit for money had and received, to which the defendant pleaded the general issue, and the statute of limitations. At the trial, which was had before Weston J. the following facts appeared in evidence.

In tbis action, which was assumpsit, brought to recover damages for the breach of a contract respecting the sale and delivery of a quantity of wheat, by the plaintiff, who resided in Hallowell, to the defendant, at tbe city mills in Boston, the evidence of the contract was contained in certain letters which passed between the parties.

This was an action of debt on a bond given by the defendant Noble, and his sureties, to the town treasurer, conditioned for the faithful performance of his duties and trust as to all processes by him served or executed, in his office of constable of the town.

<p>An award by arbitrators, written on the back of the arbitration bond, stating that they had !! met according to appointment on the within business,” was held to be an award “ of and concerning the premises,” and therefore good.</p> <p>Where a submission is of divers subjects distinctly enumerated, if it appears from the whole award that all the matters submitted have been adjudicated upon by the arbitrators, it is sufficient, though each particular is not specified in the award.</p> <p>Whether arbitrators, not constituted under the statute, or by rule of Court, can award costs, without express authority, — quairc.</p>

This case, which was trespass cle bonis asportatis, came before this Court upon exceptions taken to the opinion of Perham J. before whom it was tried in the Court below. It appeared that the plaintiffs were sureties in a promissory note, for one Sanborn, at the Bangor bank ; and that to secure them against damages by reason of their liability, he conveyed to them one third part of a carding machine, which he owned in common with S. & 1). Kimball.

This was an action of assumpsit on a promissory note, made by the defendant, payable to Seward Porter, and by him indorsed to the plaintiff; and it came before this Court upon exceptions taken to the opinion of Perham J. before whom it was tried in the Court below.

This was an action of debt on a bond, given in á prosecution under the bastardy-act, conditioned that the principal defendant should appear at the next Court of Common Pleas, and from day to day during the term, and abide the order of Court in the prosecution against him, &c. The order was in the usual form, after a judgment of filiation, that the defendant should pay a certain sum for the past support of the child,and a fixed weekly rate for its future maintenance ; and…

<p>The question in this case was upon the domicil of Patience Bailey, a pauper. She came hither from Vermont, in the year 1811, and resided for several years in the family of Oliver Beale, her sister’s husband, who lived in various places, and lastly in Fairfield, till Jlugust 1820. About that time, her health having declined, she went on a visit to Gardiner-, and during her absence Mr. Beale removed to Hampden, informing her by letter that his circumstances had become too much, reduced to allow him to support her as a member of his family any longer, but that he would render her any other aid, if in his power. After this, she resided in various towns in the county of Kennebec, and from January to June 1821, in different families in the town of Fairfield.</p> <p>In the summer of that year she went to Hampden by invitation from her brother inlaw, on a visit only ; where she fell sick, and was relieved by the town. The friends with whom she sojourned in Fairfield, all testified that their doors were opened to her as a visitor only, and from motives of charity, she being in a low state of health, destitute of the means of support, and a member of the same church with themselves.</p> <p>A verdict was returned for the plaintiffs by consent, subject to the opinion of the Court.</p> <p>relied on the fact that the pauper was resident in Fairfield, at the passing of Stat. 1821, ch. 122, and he argued from the evidence in the case that her domicil was there, she having no intention of departing. She had a permanent dwelling in that town till the removal of her brother in law • to Hampden ; after which she was not wholly forisfamiliated, a home being provided for her among the friends of her own communion. Whether her board cost much, or nothing, the principle of the case was the same.</p> <p>to the point of domicil, cited Vattel, b. 1, ch. 19, sec. 218. Putnam v. Johnson 10 Mass. 501. Case of the Penus 8 Crunch 278, 279, 295, 296. 2 Peters’ Jidm, 450. Guierv. O’ Daniel 1 Bin. 351, note. Granby v. Jlmhcrst 7 Mass. 1. Lincoln v. Ilapgood 11 Mass. 350. Jlbington v. Boston 4 Mass. 312. Billerica v. Chelmsfoad 10 Mass. 394. Bruce v. Bruce 2 Bos. & Pul. 230, note.</p> <p>And he contended that the pauper had no domicil in Fairfield, because she had no fixed habitation there; nor any expectation of remaining; but was a mere visitor; not protected from arrest in any of the houses in which she sojourned; Oyster v. Shed & at. 13 Mass. 523; for she was not entitled to the jus domi; and because, if of the other sex, such residence would have conferred no civil rights, as, to vote, &c. Taylor v. Knox 1 Dal. 158; nor any civil liabilities, as to pay taxes, or to do military duty. Stat. 1821, ch. 164, sec. 1.</p>

In an action of trespass quare clausum fregit,the defendant justified as surveyor of highways for the town of Bangor, and shewed that the locus in quo was laid out by the selectmen as a town way, and accepted as such by the inhabitants, at a legal meeting.

This was a writ of entry on the seisin of the demandant, brought to recover possession of part of a mill-site in the town of Sullivan.

This was an action of assumpsit, for labor done under the direction of a surveyor of highways, in rebuilding a bridge which had been suddenly destroyed by fire. And it appeared that the surveyor, having no unexpended monies in his hands, obtained the consent of one of the selectmen, who was brother to the plaintiff, to employ him to rebuild the bridge; which was done accordingly.

<p>.After tlie execution of a bond for the debtors’ liberties, the sheriff is not liable is the debtor escape.</p>

In a writ of error to the Court of Common Pleas, in a cause in which the plaintiffs in error were defendants, the case was thus;— The son of the original plaintiff, having obtained the testimonials required by the statute, was regularly employed as a schoolmaster, in one of the districts in Searsmont, for three months.

In this case, which came before the Court upon a statement of facts agreed by the parties, the only question was whether the town in which a pauper had his settlement, was liable to an action at the suit of the town relieving him, until the expiration of two months after notice given pursuant to Stat. 1821, ch. 122.

IN Ibis case the question was upon the domicil of John Braddock, an alien, whose wife was the pauper for whose support the action was brought. She had her legal settlement originally in Waldoborough; was married to Braddocli in 1790 ; and removed to Knox, where they resided at the time of its incorporation, and until the year 1819 ; when he left her, and went into the British provinces, “for the purpose of laboring,” and had not since returned.

<p>Before conviction of the felon, no civil action lies at the suit of the party injured, for goods stolen.</p> <p>After conviction he may have an action of trover, but not assumpsit.</p>

This was a writ of entry, upon a mortgage deed with covenants of general warranty, &c. made to the demandant by one Levi Sawyer, June 10, 1817, and recorded April l, 1819. The tenant claimed the premises under a deed of release, without any covenants whatever, made to him by Sawyer July 3, 1818, and recorded July 27, 1818; and the question was whether the tenant, at the time of receiving his deed from Sawyer, had notice of the existence of the mortgage to the demandant.

Assumpsit on a promissory note not negotiable, brought in the name of Humphrey Merrill against Andrew Merrill and Nathaniel Merrill, for the benefit of Uriah Holt, who claimed the amount as assignee of the note by delivery only, for a valuable consideration paid by him to the nominal plaintiff.

This was a writ of entry on the seisin of the demandant, brought to recover possession of “ a certain grist mill, with the “privileges and appurtenances thereof, standing on a mill-privilege” in Brownfield.

<p>Where one owning land through which a mill stream flowed, granted all that part of it which was situated east and north of the stream ; it was held that tha boundary was the centre or thread of the water.</p>