Volume 30 — Maine Reports

<p>Where the plaintiff was allowed to read to the jury, an attested copy of a registered deed, “ provided he should in the course of the trial, file an affidavit of the loss of the original,” and the case proceeded and was submitted to the jury, without any objection that the condition had not been performed, it may well be considered that the affidavit, if not filed, was waived.</p> <p>If, in such a case, there was an omission to file the affidavit, and the omission does not appear to have occasioned any injury to the defendant, it cannot be considered a sufficient cause for disturbing the verdict.</p> <p>The declarations of a party, made in conversation with a third person, and not appearing to be a part of any business transaction, cannot be introduced by him as testimony in his own favor.</p> <p>If one procure an attachment upon real estate to be ante-dated, so that it falsely appears of record that it was prior to a conveyance made by the owner to a third person, and such third person not knowing that the attachment was ante-dated, and for the purpose of dislodging it, pays the creditor the amount which the attachment purported to secure, he may recover back the same in an action at law, although the money was paid to the defendant by the hand of his debtor, without any disclosure that he was paying it as the agent of the plaintiff.</p> <p>In such an action, it ig no defence that the defendant, in receiving the money from his debtor, intended no fraud upon the plaintiff or any other person ; or, that he was ignorant that the plaintiff had furnished the money; or, that the money was paid before there was any certainty that the plaintiff would be injured by the attachment; or that the land never had been seized upon execution, and the plaintiff had never been disturbed.</p> <p>Where a former vctrdict was set aside because the principal witness, in the opinion of the Court, was entitled to little or no credit; and on another trial a similar verdict was returned, and there is no proof of any improper prejudice, bias, or passion with the jury, the Court cannot interfere to enforce its own opinion respecting the testimony and the facts, and the verdict cannot be set aside as against the weight of evidence.</p> <p>It is incorrect for a person, drawn as a juror, and who was also summoned as a witness for the party prevailing, to receive his fees as a witness, for any part of the time he was sitting as a juior to try the cause. Yet, if it do not appear that either the party prevailing or the juror knew it to bo incorrect, and if there be no evidence of corrupt intention, it is not sufficient cause for setting aside the verdict.</p> <p>A new trial, to permit newly discovered testimony to be introduced, should only be granted, where such testimony is not cumulative, and where there is reason to believe that, if it had been before the jury, the verdict would have been different.</p>

<p>Petition rob certiorari, against the county commissioners of Lincoln. It sets forth, that “ on the first Monday of September, 1848, a decision was made and judgment rendered by said commissioners, approving and allowing a certain town way in said Lewiston, said to have been previously laid out by the selectmen of said Lewiston, and unreasonably refused and delayed to be allowed by said inhabitants ; said commissioners directing said town way to be recorded by the town clerk of said Lewiston, which decision and judgment of said commissioners was rendered on the petition of Oliver Herrick and sixty others.”</p> <p>The petition of said Herrick'and others was directed to the commissioners at their May term, 1848, and represented as follows: —“ That a town way from a stone in the ground, at the corner of Hiram Adams’ house lot in the town of Lewiston, thence in a southeasterly direction, partly over land given by the Lewiston Power Company for a road, and over land of the widow Joanna Frye and Daniel Tracy, to the county road leading from Lewiston bridge to Greene comer, in said town of Lewiston, would be of great public convenience; that the selectmen of said town, after notice and hearing of the parties, have laid out such a way and reported the same to the town, at a public meeting of the inhabitants duly notified and warned, yet the town has unreasonably refused and delayed to allow and approve said town way, laid out by the selectmen as aforesaid, and to put the same on record. Wherefore, your petitioners, considering themselves aggrieved by such delay and refusal, pray that your honors would, agreeably to law in such cases made and provided, accept and approve said town way, and direct the same to be recorded in the books of said town.” "</p> <p>The petition of said inhabitants of Lewiston, sets forth that the decision and judgment of said commissioners was wholly predicated upon the petition of said Herrick and others, and was inoperative, illegal and void, and that the court of county commissioners had of right and law no appellate jurisdiction of the subject matter in which they exercised such jurisdiction ; and that the decision and judgment aforesaid ought to be quashed, for which said inhabitants assigned fifteen reasons.</p> <p>But the examination of the case renders it unnecessary to report only the thirteenth reason, which was in these words: —</p> <p>“And the said inhabitants do further represent, that in the doings and records of said commissioners, there is error in this, that neither in the petition of Oliver Herrick and sixty others, nor yet in the decision of the county commissioners, is there any description of any road or way, that the town clerk can record, as ordered by said commissioners.”</p> <p>The record of the county commissioners, after reciting the petition of Herrick and sixty others, its entry and notices ordered, was as follows: — “ Pursuant to the foregoing order of notice on the petition of Oliver Herrick and sixty others, for a town road in the town of Lewiston, being an appeal from said town to the court of county commissioners, we, the county commissioners of Lincoln county, mot the parties at the time and place designated in said order, for that purpose, and it was then and there proved to our satisfaction, that all the notices required by said order had been duly and fully served, and that all the requirements of said order had been fully complied with, we then proceeded with the parties and viewed the route prayed for in said petition, and heard the parties and their witnesses at a convenient place in the vicinity thereof, and after a full hearing and consideration of all the testimony and arguments by all parties presented for consideration, we do adjudge and determine that the public convenience and necessity require that the said town of Lewiston open and build said road, and that the clerk of the court of county commissioners is hereby directed to notify the clerk of the town of Lewiston to make a record of the return of the selectmen of the said town of Lewiston, of the laying out of said road, the same as though said road had been accepted by said town.</p> <p>“ And it is further ordered, that the town of Lewiston pay into the county treasury, within three months from the time this report is accepted, the cost arising and made on the county by reason of the above petition, taxed at $75,75.”</p> <p>The action of the town, so far as it appeared from their records, in relation to this supposed town way, was after this manner. The second article in the warrant calling a meeting on the 13th of Sept. 1847, was “to see if the town will accept the following street or road laid out by order of the selectmen, August 28, 1847, beginning at a stone fixed in the ground at the northerly corner of Hiram Adams’ house lot, thence on the westerly side of Middle street, so called, south 14° E. twenty-two rods and 22 links to a stake and stones on the northerly side line of the widow Frye’s house lot, said road to be 50 feet wide on the easterly side of said line, — thence 224° east nine and one half rods across said Frye’s land, the road leading from Lewiston falls to Greene; also beginning at a stake at the termination of said Middle street on Daniel Tracy’s line, thence south 22|° E. eight and one half rods to the said county road, said street being 50 feet wide, taking about five rods of widow Frye’s land, and twenty-one rods of Daniel Tracy’s land, for which they claim damage.” At the meeting, under article second, was recorded “ on road across Daniel Tracy’s and widow Frye’s land the selectmen estimate the damage to Daniel Tracy two hundred and fifty dollars, and to widow Frye thirty dollars. Voted not to accept the road.”</p> <p>At a regular meeting of the town on the 4th October, 1847, under a similar article respecting said road, it was “ voted to defer the subject of the road across Frye and Tracy’s land to the next annual town meeting.”</p> <p>At another meeting on the 13th March, 1848, under an article to “ see what action the town will take upon the road across land of William R. Frye and Daniel Tracy, and referring to the warrant of the previous October meeting, it was voted “ to indefinitely postpone the article.”</p> <p>It further appeared, that a paper made by Col. Garcelon, a surveyor, containing a description of the road as set forth in the second article of the warrant before alluded to, was filed in the office of the town clerk of Lewiston, upon which were the following indorsements. “ Minutes of road across widow Frye’s and Daniel Tracy’s land, August 28, 1847.” “ Duly filed in the clerk’s office.” “ Recorded.” “ E. C. Tobie, town clerk.”</p> <p>The only record evidence of any action in reference to damages occasioned by the supposed laying out of said road, appears from the proceedings of the town under the second article of the warrant, of the meeting of September 13, 1847. Of the application for the laying out of the road, there was no record. The chairman of the selectmen posted up two notices of the intentions of the selectmen to lay out the road, which he wrote, and signed the names of the board thereto, under a general authority from his colleagues to use their names in their official capacity, when he deemed it necessary so to do. He posted op the notices seven days prior to the time of acting upon the application, at two places within a quarter of a mile of said road. The substance of the notices were not recollected. He employed William Garcolon, a surveyor, to survey said road and to give him the minutes thereof, and the chairman was the only one of the selectmen present, to locate said road. No personal notice was given to Daniel Tracy, nor to the other owners of land, across which the said road was to be laid, and none of them were present at the time of the location. The damages were estimated by the selectmen, at the time the meeting was holden, to see whether the town would accept the road. One of the selectmen had no knowledge of the location or intention to locate paid road.</p> <p>The supposed street was included in a surveyor’s district under the order of the selectmen in 1847, and worked upon that year.</p> <p>It did not appear from the records of the town, that ¡tbo selectmen filed or caused to be filed the location of the road, or any minutes thereof, other than what appeared in a warrant calling a meeting to see if they would accept of several roads, in October, 1848, among which was the road now in dispute, and which was then rejected. And it was agreed that there were no reports of the location of said way, other than has herein been referred to.</p> <p>It was admitted that said Tracy’s house was built several years before the supposed location of said road in 1847, and that the road was laid so as to run through the L pau of his house.</p>

<p>Where the plaintiff becomes nonsuit, no judgment can be rendered against him upon an account in set-off.</p>

■ Trespass quake clausum. The question was one of boundary, and related to the location of a line across the David Trask farm, so called. That farm was bounded on one end by the river. And it was a little wider at the river than at the back end.

<p>Where an indictment for larceny contains any particulars descriptive of the property stolen, though not necessary to be inserted, they must be proved on the trial.</p>

Exceptions from the District Court. Entry. The defendant was summoned to answer to Rice Rowell in “ a plea of land, wherein the said Rowell demands against the said Jonathan possession of one undivided third part of the following parcel or tract of land, [described in the declaration,] whereof the said Small unjustly......To the damage of said Rowell,” &c. The plaintiff moved to amend the declaration by adding the usual averments, requisite to a declaration in a writ of…

Assumpsit on a promissory note, dated July 27, 1847, payable “ at Boston six months after date,” By due course of mail the defendant received from the plaintiffs, a letter dated and mailed at Boston, Jan. 18, 1848, from which the following is an extract: — “If you can possibly send us the amount of your note or a part of it, on the receipt of this, it will greatly oblige us.” By due course of mail the plaintiffs received from the defendant a letter dated and mailed Pittston,…

<p>A mortgage of personal property, given to sureties to protect them against their suretyship, is not in force after the creditor has discharged the sureties.</p> <p>Where a debtor gave to his sureties such a mortgage to secure them against their suretyship upon a note, and they assigned the mortgage to the creditor for his security, taking from him a discharge, under seal, of their liability-on the note , the mortgage is no longer in force.</p> <p>The design of such a mortgage being merely to protect the sureties against the note, and that protection having been given by the creditor’s discharge, the condition of the mortgage is fulfilled.</p>

<p>George C. Hall owned the equity of redeeming certain mortgaged real estate. It was attached on a writ in favor of Bunker. After that George C. Hall conveyed away his said right. Bunker, having obtained judgment in his suit, caused the equity to be seized on his execution within thirty days from the judgment, and the same was sold by the officer to the plaintiff. At the time of the sale, the defendant was occupying the land, as a tenant under Elijah Hall and Ephraim Hall, who had acquired the rights which George C. Hall, after the attachment had sold as above named. This suit is brought to recover for pasturing cattle and cutting hay upon the ground between the time of the purchase and the bringing of the suit. Said sale to the plaintiff was made on the 20th of May, 1844. The officer’s deed was made, acknowledged, delivered and recorded, August 6, 1814. The suit was brought on the 21st of August, 1844.</p> <p>The case was submitted for the decision of the Court.</p> <p>Under the statute of 1821, such a deed gave seizin, if the debtor had it, and also constructive possession in addition to the title.</p> <p>But under R. S. nothing passes by such a sale except the naked “ title.” chap. 94, ■§> 39. The intent undoubtedly was that debtor should hold possession, until evicted by law. Hence, the creditor may recover in his suit for the rents and profits, chap. 145, § 14. In the sale of an equity, there is no delivery of seizin, except a momentary one, when a third person is seized, chap. 94, § 18. And the tenant is not to be expelled. The creditor took but a right of entry and of possession. Langdon v. Potter, 3 Mass. 215 ; Gore v. Brazier, 3 Mass. 537.</p> <p>Else, why was the statute of 1821 repealed? This view is confirmed by that provision, relating to the setting off an equity, which prohibits the tenant to be ousted, and only assigns the debtor's right, chap. 94, § 17.</p> <p>George C. Hall, the debtor, was disseized by the deed which he gave of the equity. The purchaser, therefore, took but a right of entry, and this suit cannot be maintained.</p>

“ Tins was a complaint for flowing plaintiff’s land by a dam erected by defendant, on a stream at the outlet of South pond. The land flowed was on said pond about two miles north of the dam. “ The complaint was filed August term, 1843. Noyes was defaulted in the District Court. The action was brought by Kelley into this Court by appeal.

<p>Assumpsit for use and occupation of a house and its lot.</p> <p>The plaintiff had levied the property, as belonging to the defendant, on an execution against defendant and one Lane.</p> <p>testified that Howard’s family used and occupied the land and house about two years after the levy of plaintiff’s execution. On cross-examination, he stated that Howard was not at home when the levy was made, but was at home all the next winter ; that since Howard moved off he told the witness he had a good warranty deed, and had never denied that he had a title.</p> <p>testified as follows: — I was co-defendant with Howard in the original suit, brought by the plaintiff. Howard continued to occupy the premises about two years after the levy.</p> <p>On cross-examination ; Howard was in Massachusetts when the levy was made; he came home the next winter or summer; he told me, plaintiff could not prove he, Howard, had any title, and therefore plaintiff could not hold by his levy, or something like that; plaintiff resides in Baltimore, Maryland; was never in Leeds to my knowledge. I saw him in April, 1847, in Baltimore; he then told me he had never brought any action against Howard for rents and profits, and did not know any thing about such an action ; did not know there was any claim against Howard for rent: and had never seen Mr. Evans after the levy.</p> <p>testified as follows: — I was attorney in the original suit for the plaintiff; demand was sent me by plaintiff; I directed a young man in my office to bring a suit.</p> <p>After levy I had verbal instructions from plaintiff to act as I did; I agreed to sell the land to Ensign Otis, made the deed exhibited to me, the signature is that of plaintiff. Plaintiff was anxious to have the matter adjusted, and gave me broad authority. This was in March or April, 1845. When I delivered the deed to Otis, I made and delivered to him the following assignment: —</p> <p>“ Having sold certain property in Leeds levied upon by me, as the property of Benjamin F. Howard, to Ensign Otis of said Leeds, I hereby assign all the rents and profits of said premises, accruing since said levy, to said Otis; and authorize him to sue for and recover the same, in my name, for his use; he saving me from all cost in the same.</p> <p>“ Oct. 13, 1845. Jonathan S. Eastman.”</p> <p>“ By his attorney, Geo. Evans.”</p> <p>On cross-examination; I told Eastman the land was his and had been for two or three years. He authorized me to settle and do the best I could for him, without any restrictions whatever. I did not know which of the debtors occupied the land.</p> <p>A nonsuit was ordered, and exceptions filed by the plaintiff.</p> <p>A Judge may not order a nonsuit, unless, assuming the evidence of the plaintiff to bo true, he has failed to support his action. Sanford v. Emery, 2 Greenl. 5 ; Perley v. Little, 3 Greenl. 97 ; Wilkinson v. Scott, 17 Mass. 249.</p> <p>Here were three questions for the jury, viz.: — the occupation, the permission and the value. The cross-examination made by the defendant, is not to be taken into consideration. The questions are upon the evidence called out by the plaintiff. The Court is not to decide, that the statements in the cross examination were true. The plaintiff had adduced evidence which would have authorized a verdict in his favor. Stark, on Evidence, vol. 3, pages 1513 and 1516.</p> <p>It is only "necessary to prove that defendant occupied by permission of the plaintiff. The permission may be inferred. It was therefore for the jury.</p> <p>Though trespass for mesne profits might have been maintained, the plaintiff may maintain assumpsit. The trespass may be waived. Curtis v. Treat, 21 Maine, 525; Stark, on Evidence, vol. 3, page 1516 and 1517; Hambly v. Trott, Cowper, 372; Cummings &f ux. v. Noyes, 10 Mass. 433; Pickett v. Breckenridge, 22 Pick. 297.</p> <p>In the case of Wyman v. Hook, the reasoning was one way, and the decision the other. It can therefore have no weight.</p> <p>An execution debtor, whose land has been set off, cannot contest the creditor’s title, although a third person might do it.</p> <p>1. Where the debtor remains in possession after the levy, assumpsit for use and occupation will not lie, except upon some contract between the plaintiff and defendant, either express or implied. None can be implied from the mere holding of the defendant. There must be proof that the defendant held under the plaintiff. Wyman v. Hook, 2 Greenl. 337 ; Fox fy al. v. Harding, 21 Maine, 104; Curtis v. Treat, 21 Maine, 525.</p> <p>2. An assignment of a right of action for a tort is not valid; and the declarations of the assignee, he being the plaintiff of record, made after such assignment, may be given in evidence. Fose v. Grant, 15 Mass. R. 517.</p> <p>3. The Court will not try the question of title in an action for use and occupation. If the relation of landlord and tenant exist, the defendant is estopped to deny the plaintiff’s title; and if it does not exist, the action cannot be maintained. City of Boston v. Binney, 11 Pick. 10.</p>

Assumpsit on a debt due prior to the year 1843. General issue, with brief statement that the defendant on the 26th day of September, 1843, filed in the office of the clerk of the District Court of the United States, his petition for the benefit of the bankrupt act, and was afterwards duly discharged upon said petition.

<p>in a criminal prosecution, the Judge is not bound to quash the indictment on motion. The defendant should take the advantage by demurrer or in arrest of judgment.</p> <p>Upon a motion in arrest, a common law indictment is good, which alleges that defendant “ with force and arms, near the dwelling houses of divers citizens and near divers streets and common highways, did unlawfully erect, continue and uso a certain building as a place for bowling, with a bowling alley therein, to which diver» persons have been, and now are, accustomed to resort for the purpose of bowling, and, being so there, to play at bowls in the day time and also in the night time, thereby occasioning great noises, damage and other annoyances, and becoming injurious and dangerous to the comfort of divers individuals and the public, and to the common nuisance,” &c.</p> <p>It seems, also, that upon such a motion, an indictment would be good, which charges that the defendant did unlawfully keep and maintain, for his own lacre, a common and disorderly room, called a bowling alley, and did unlawfully procure and permit divers persons to frequent and come together at said alley for the purpose of howling, and being so together, there to play at howls in the day time and in the night time, to the great annoyance, damage and common nuisance of all the citizens of the State.</p> <p>Upon conviction of a nuisance, the Court may punish by a fine only. Or they may also cause the nuisance to be abated. But such abatement will not be required when strangers to the proceedings might be improperly affected.</p>

This was a writ of entry, demanding one undivided half of premises described. Demandant read a deed from himself to the tenant, dated January 20, 1847, conveying to the tenant the demanded premises on condition.

This is a writ of entry, to recover the possession of a strip of land about five rods in width, being the northerly part of the following parcel of land, and extending the whole width thereof, viz.: part of check lot No. five, in the fifteen mile lot A 1, and bounded as follows: easterly and westerly by the side lines of said check lot, southerly by a line parallel with the north line of said fifteen mile lot and distant therefrom southerly one hundred and twenty-eight rods,…

Debt upon a judgment, recovered before a justice of the peace. The defence rested upon the following memorandum, made and signed by the plaintiff, viz.: — “ I hereby agree to give up an execution I hold against the Kennebec Locks and Canals Company, in case the property is redeemed of Reuel Williams, the refusal of which is given till the first of January next.

<p>Action on the case,- to recover damages for obstructing an easement appurtenant to the plaintiff’s dwellinghouse, viz.: —- a well and the right of passing to and from the same.</p> <p>The defendants’ claim to the land, upon which the well stood, was derived, (through intervening conveyances,) from Ephraim Dutton. And Dutton’s title was derived in 1828, by deed from Nathan Weston, which deed reserved “to said Weston, his heirs and assigns, who may occupy the dwelling-house in which said Weston and John Hovey now live, the right to take water freely from the well, now on the premises, or from any other well which may be sunk there.” And all the said intermediate conveyances contain substantially the same reservation.</p> <p>In this tracing of the title, it appears that Dutton conveyed to Oliver Barrett in 1830, and at the same time, took back a mortgage to secure the purchase money, and that, in 1836, he assigned the mortgage, which in 1843, came by assignment to Francis Butler, the father of the defendant, and under whom their title is derived by inheritance.</p> <p>The lot, claimed by the plaintiff, is near to that claimed by the defendants. It was derived to the plaintiff, by intermediate conveyances, under the title of Nathan Weston, whose deed being the first in the series, was made in 1829, to Ebenezer Caldwell, containing the following clause, “ together with the privilege of getting water from the well on the land I sold to Ephraim Dutton, as reserved in my deed to him.” Substantially the same clause is contained in all the said deeds.</p> <p>The title was held by Caldwell until 1841, and came in 1845, to the plaintiff, who immediately entered into, and still continues the occupation of the house.</p> <p>In 1831, the lot, sold as aforesaid to Dutton, “ was covered all over with brick and wooden buildings of a permanent character; the well was entirely covered up, and this state of things has so continued ever since.” The case was submitted for the decision of the Court.</p> <p>Besides the amount of damage, the plaintiff is bound to establish two points: —</p> <p>1. His title. This is shown clearly by the deeds used in the case.</p> <p>2. The disturbance by the defendant. The case shows that the well was covered up by permanent erections, in 1831, by persons under whom the defendant claims. And for the continuance of the disturbance, the defendants are liable from the time their title commenced. These two positions establish the plaintiff’s right to recover.</p> <p>The obstruction complained of was erected long before the ancestor of the defendants became the owner of the servient estate. It is therefore only for the continuance of the obstruction, that the plaintiff lias any pretence of complaint.</p> <p>Admitting that the erections complained of were an invasion of the plaintiff’s easement, he has shown no right of action, because he does not show that, before instituting the suit, he requested the defendants to remove the erections.</p> <p>Butler might reasonably have supposed that the easement had been relinquished or abandoned. “ When the party against whom the action is brought, was not the original creator of the disturbance, a request must be made, to remove the nuisance, before any action is brought.” Penruddock’s Case, 5 Co. p. 101; Bent v. Haddon, Cro. Jac. p. 555; Gale & Whatley on Easements, 295.</p> <p>If this principle is to be applied for the protection of a purchaser or a lessor, a fortiori, it will to those who have the inheritance cast upon them by the act of the law.</p> <p>Again, the well was covered long before the plaintiff became the owner of the dominant estate, and long before the servient estate was purchased by the defendant’s ancestor.</p> <p>In 1831, the well ceased to exist as a well, and the easement was extinguished. Hancock v. Wentworth, 5 Mete. 446.</p> <p>The owner of the dominant estate at the time, might have maintained his action and recovered damages commensurate with his loss. But his right of action was not assigned to his grantee, nor did it pass with the land. The plaintiff purchased “ the right to take water from the well.” There was then no well, and none has since that time been sunk.</p> <p>1st. A demand on the defendants was not necessary. The law does not require useless acts. The well was covered with buildings of a permanent character of great value, and no man believes that these defendants, on request by plaintiff, would have removed them. No such request is necessary in analogous cases, such as flowing lands, diverting water courses or raising dams so as to injure mills above.</p> <p>2. An easement of this nature is a real right, 5 Mass. 129, 7 ib. 387, and cannot be acquired without a grant, express or implied. 3 Kent’s Com. part 6, § 52, pages 434 and 441 ; Cook v. Stearns, 11 Mass. 536 — 7; Thompson v. Gregory, 4 Johns. 83; Bicker v. Kelly, 1 Maine, 118; Arnolds. Stevens, 24 Pick. 106. Why then should it be lost or extinguished with any less formality ?</p> <p>The easement was not extinguished. The case cited for defendants, 5 Mete. 446, lays down the modes of extinguishing such rights. By the act of God, operation of law, and the act of the party. The same rule is found in 2 Hilliard’s Abr. p. 54, § 12. This would seem to be the settled law. Now the plaintiff has not lost his right in either of these modes. White v. Crawford, 10 Mass. 183 ; Gale & Whatley on Easements, part 3d, Extinguishment, p. 347, 353, and seq. cases; 10 Pick. 316; Dyer v. Sanford, 9 Mete. 395. The case does not find that the easement was destroyed in 1831 ; it only finds the well was covered up with buildings. The permanent obstruction, or even destruction of the beneficial use of the easement, is a very different thing from the extinction of the right in the plaintiff’s grantors. It is the right which is at issue here.</p>

The facts are presented in the opinion of the Court. The constable of Augusta had no authority to select one of the justices. The execution was not directed to him or to any constable. Neither of the parties had ever resided in Augusta.

Tins action was commenced before a justice of the peace, to recover the penalty for unlawfully selling intoxicating drinks, &c. Before the justice, there was a plea in abatement to his jurisdiction, to which plea the plaintiffs demurred. The justice rendered judgment that the defendant should answer over, and the defendant appealed. In the District Court, Rice, J., the appeal was dismissed, and the plaintiffs excepted.

<p>A promise, made in consideration that the promisee would procure the discontinuance of an indictment, in which he was prosecutor, is invalid.</p> <p>A was in prison in Massachusetts upon an indictment for having fraudulently obtained goods from the prosecutor by false pretences. It was then agreed by the prosecutor, that ho would procure a nol. pros, and stop the prosecution, if B, a friend of A, would pay the costs, and give his notes for a specified sum, to be allowed on the debt due from A, for the goods. The prosecutor procured the nol. pros, to be entered, and A to be thereby discharged. B refused to give the notes as he had promised. Held, that the consideration for the promise was illegal, and that no action by the prosecutor could be maintained upon it.</p>

<p>Writ op entry. The trial was .before Shepley, C. I. The defendants submitted to a default, which is to be taken off if, in the opinion of the Court, the demandant is not entitled to recover.</p>

Exceptions from the District Court, Rice, J. A submission was made before a justice of the peace of all demands arising between the parties since the 1st of January, 1845. No specification of claim, and no demand of any kind was annexed to the submission. The award was rejected. The submission of all demands since January 1, 1845, is equivalent to a submission of all demands, so far as the requisition of the statute in relation to the annexation of demands is concerned.

Exceptions from the District Court, Rice, J. This is a complaint charging, that defendant, without license, sold spirituous liquor to J. R. in less quantity than the revenue laws of the United States prescribe for importation, viz : — one glass of New England rum.

Report of legal questions from the District Court, Rice, J. The action was assumpsit, commenced in 1848, upon a witnessed promissory note for $91,38, dated July 12, 1839, payable to Francis Butler or order, in one year with interest, and indorsed to the plaintiff more than six years after its payday. Brief statement of usury and of the statute of limitations.

<p>Tile purchaser of a bankrupt’s right in a tract of land, if he was never a creditor of the bankrupt, nor represents any creditor, takes only the rights in law and equity, which the bankrupt had at the time of his bankruptcy.</p> <p>It is a settled rule, that if one purchases an estate with his own money, and the deed be taken in the name of another, a trust results, by presumption of law, in favor of the one, who pays the money.</p> <p>By force of authorities, the Court has been constrained, though reluctantly, to adopt the rule, that such payment may be proved by parol, but they will require the proof to be full, clear and convincing.</p> <p>It has been said that, if the money were paid by two or more persons, and it clearly appeared how much each one paid, a trust in the estate would arise to them, respectively, pro tanto. But no case has been found to uphold a trust, where the proportions paid were uncertain. In such a case no trust can be established.</p> <p>The presumption of a resulting trust may be rebutted by parol testimony.</p>

<p>In a charge for a conspiracy, if the act to be done is in itself illegal, the indictment need not set forth the means by which it was to be accomplished.</p> <p>If the act to be done is not in itself unlawful, but becomes so from the purposes for which, and the means by which, it is to be done, the indictment must set out enough to show the illegality.</p> <p>The crime of conspiracy to obstruct and injure the administration of public justice consists in the unlawful purpose.</p> <p>An indictment, charging a conspiracy to hinder and injure the administration of public justice, by obtaining a counterfeit bill from the hands of a person to whom it had been uttered, so that it could not be had as evidence upon a criminal prosecution, is sufficient. It need not allege the means to be used, nor that the bill was in the hands of the person named, nor need the bill be described, nor need it be alleged, that the defendants knew that it had been uttered wilfully.</p>

Trial before Shepley, C. J. Assumpsit for a residuary legacy made to Mrs. Smith by the will of her father. Held: that no action lies at common law, until the legacy was reduced to a certainty.

This is an action of covenant broken, in the conveyance by the defendant to the plaintiff, of two shares in a manufacturing company. The conveyance was made by a warrantee deed in the usual form of conveyance of real estate, and contained the usual covenants.

<p>1st. The record of the justice is not conclusive. Parol evidence should have been admitted to contradict it. Commonwealth v. Bullard, 9 Mass. 270; Bangs v. Snow, 1 Mass. 181.</p> <p>2d. Presumption of law, in relation to matters of fact, may be repelled by oral testimony. Davenport v. Mason, 15 Mass. 85; Jackson v. Leggett,! Wend. 377: Jackson, ex dem., Genet v. Wood, 3 Wend. 27.</p> <p>3d. At common law, an attorney has no lien for his costs. Getchell v. Clark, 5 Mass. 309; Baker v. Cook, 11 Mass. 236. Nor does the statute of 1821, give any rights to the attorney, but merely prohibits the officer from setting off the costs of the attorney, in cases where set-off is allowed. Rev. Stat. chap. 117, <§>§ 1 and 37.</p> <p>4th. An attorney never has a lien upon a judgment for his costs against the adverse party, unless such party has notice of his lien. Baker v. Cook, 11 Mass. 236; The People v. Hardenburgh, 8 Johns. 335 ; Potter, Judge, fyc. v. Mayo fy als., 3 Green!. 34; Stone v. Hyde fy ah 22 Maine, 318’; Martin v. Hawks, 15 Johns. 405.</p> <p>5th. The Court will protect an attorney’s lien to the same extent as the rights of an assignee. Bradt v. Koon, 4 Cowen, 416.</p> <p>6th. Where a bona fide compromise of the suit has been made, between the plaintiff and defendant, without notice of the lien, the defendant cannot be compelled to pay the attorney his costs. Chapman fy ah v. Hoto, 1 Taunton, 341; Pinder v. Morris, 3 Caines, 165.</p> <p>7th. Where a judgment is appealed from, it becomes wholly "inoperative, and no execution can issue upon it; nor can it be the foundation of an action of debt. The effect is the same, if the appeal, when duly claimed, be not allowed. Campbell v. Howard, 5 Mass. 376; Bemis v. Faxon, 2 Mass. 141.</p>

Debt, upon a poor debtor’s bond. The debtor, after having duly cited the creditor, took the poor debtor’s oath before two justices of the peace and quorum. One of the justices was an uncle to both the creditor and debtor. Plaintiff objected to his competency. The case was submitted to the Court for decision-according to the rights of the parties. 1. One of the justices being an uncle to the creditor and debtor, was incompetent to administer the oath.

<p>A surveyor of highways, who, after expending the assessments committed to him for the repair of the road, and finding the same to be insufficient, is directed by the selectmen to proceed in the work, and thereupon expends a further sum, has no remedy against the town for remuneration, unless such direction was in writing.</p> <p>Conversation by the moderator and others, in town meeting, relating to a subject legally under its consideration, cannot be proved, as evidence against the town.</p> <p>The plaintiff and another person made separate claims against a town, growing out of some connected transactions. The town voted to allow the plaintiff 700 dollars, provided the other person would accept $200 for his claim, which he refused to do. Held, the town had the right to affix the condition ; that it was not of that class which is void because impossible to be performed; and that it would not support an action for the plaintiff</p>

This is a complaint for costs. The respondents bad sued out a writ of attachment, returnable to the District Court, against the petitioner, and delivered the same for service, to an officer, who thereon attached a threshing machine, the property of the complainant, and carried it away ; and it has never been returned. The complainant, on tendering the fees, demanded and obtained of the officer an attested copy of the writ.

Assumpsit, upon a witnessed note, payable more than twenty years before the commencement of this suit, on which a part payment had been made, within said twenty years. The plaintiff’s right arising from the partial payment of a note, is upon the promise, implied by law from such payment, and not upon the original note. Such an implied promise, is a new cause of action. Little v. Blunt, 9 Pick. 448 ; Barrett v. Barrett, 8 Greenl. 353; Greenl. Ev. % 440.

Exceptions from the District Court, Goodenow, J. This is an action of assumpsit on a contract or obligation of which the following is a copy, viz: — “ Whereas I hold a note signed by Reuben Wing and Nathan Carver for $300,00 and interest, dated January 18, 1837, annually in four years from date, also a note against the same persons for $245,00 and interest annually in two years, of same date, now for value received I promise to pay Jane Hill Greenleaf one eighth of said sums…

Exceptions from the District Court, Goodenow, J. Assumpsit. The writ was without seal. The defendant moved that it be quashed for that cause. The plaintiff moved for leave to affix a seal, which was allowed, and the seal of the Court was affixed, and the defendant’s motion was refused. The defendant excepted, and before any further proceedings were had in the District Court, the exceptions were entered here. cited 9 Pick. 446 ; 3 Fairf. 196; 19 Maine, 204.

Exceptions from the District Court, Goodenow, J. Assumpsit upon a warranty in the sale of a yoke of oxen by the defendant to the plaintiff. The oxen were unsound, and the plaintiff contended that the defendant warranted them to be sound. There was much testimony, and it was somewhat conflicting, as to the language used by the defendant in •making the sale.

<p>In protecting his own property, every person is bound to use ordinary care not to injure the property of others.</p> <p>Imminent danger from fire or flood, cannot excuse or exempt a person from the use of ordinary care to prevent unnecessary injury to properly of others.</p> <p>YVhat would, under such circumstances, be ordinary care, might differ from that degree of caution and prudence, which would be required when no immediate danger was impending.</p> <p>If one, in attempting to rescue his own property from such imminent danger, shall do injury to another’s property, he is not protected from liability, by the absence of all malicious or evil design, and of all such gross carelessness as would authorize an inference of had intention.</p> <p>The cases in which the Court may decline to set aside a verdict, when it was rightfully found, though under erroneous instructions, are only those cases in which the Court is able to perceive that, under correct instructions, a different verdict could not have been rightfully found.</p>

Exceptions from the District Court, Rice, J. presiding. Indictment for maliciously- breaking down, injuring and destroying a reservoir dam, the property of Andrew Morse, Jr., erected for the purpose of maintaining a head of water for the use of his mills; to the injury of said Morse.

Replevin for a horse, which Charles Pierce had mortgaged to the plaintiff, and which the defendant also claims under said Charles. The defendant offered to prove by parol that, at the giving of the mortgage, ijt was agreed by the parties to it, that the mortgager should be entitled to the possession of the horse for one year, which had not expired when this replevin suit was commenced. This evidence was rejected. The defendant, after verdict against him, filed exceptions.

This was an action of debt on a poor debtor’s bond. Defendant introduced a certificate, showing that he had taken the oath required by one of the conditions in the bond. To avoid the effect of this certificate, the plaintiff relied on the fact, that the debtor disclosed a quantity of grain, and refused to deliver it to an officer, having an alias execution on the same judgment, who demanded said grain of him within thirty days after the time of the disclosure.

Debt on judgment. The case was submitted for decision upon facts agreed. The defendant resided upon a lot of land. The judgment was recovered in 1843. In Feb. 1847, the defendant’s right, title and interest in the farm upon which he resided was seized on an execution issued on said judgment, and was sold at auction to the plaintiff, and out of the avails the execution was returned satisfied in part; viz., for the sum of $236,49.

Assumpsit for $50, had and received. Defendant pleaded a special plea ; setting forth, in extenso, proceedings in bankruptcy upon his own application, and a discharge as a bankrupt, &c. The plea then describes the plaintiff’s claim and avers that it was proveable in the bankruptcy proceedings, and was barred by the bankruptcy discharge, but it contained no averment that the debt was not created in consequence of a defalcation of a public officer or while acting in a…

Assumpsit, alleging that the defendants, in consideration that the plaintiffs Vould sell and did sell and deliver to them a horse, of the value of $80, by their contract in writing agreed with the plaintiffs to carry on a certain lawsuit, commenced by one Levi Hunnewell against the plaintiffs, free from expense to the said plaintiffs, and if the suit should terminate against the plaintiffs, to save them harmless and pay all damages arising from said suit.

<p>Land was held under a foreclosed mortgage, made by a husband, in which the wife made no release of dower.</p> <p>In a suit by her for dower, against the assignee of the mortgagee, she is not barred by having, for the purpose of releasing dower, joined with her husband in his conveyance of the equity of redemption to a third person.</p>

William Snow, in 1834, recovered a judgment against Moses Norton. Under the act of 1831, entitled “ An act for the abolition of imprisonment of honest debtors for debt,” he caused a citation to be issued for said Moses Norton to appear before two justices of the quorum to make disclosure of his business affairs. The citation was placed in the hands of Samuel L. Valentine, the plaintiff in error, then a deputy sheriff of the county of Penobscot, to be served on Snow.

This action was tried at a former term, see 25 Maine Reports, 330. It'now comes up, on review, for trial before Tenney, J. The original action was of assumpsit, in favor of the present defendant, upon a promissory note, dated June 24th, 1835, for $2250, payable to John M. Pollard or order in two years, with interest annually, and negotiated to the original plaintiff after it became due.

Assumpsit. Benoice Johnson, formerly the husband of the female plaintiff, by his last will, among other things, bequeathed to her the interest of seventeen hundred dollars during life; one hundred and two dollars to be paid on the 26th of August of each year, during her life. Samuel Weston, now deceased, was the executor. No other trustee was appointed.

<p>Assumpsit, for supplies furnished by Palmyra to James Curtis and Eliza Curtis, his wife, and Lewis Curtis, Elizabeth Curtis, Rozilla Curtis, Frances Curtis, Eliza Curtis and William Augustus Curtis, their children, whose settlement was alleged • to be in the town of Prospect. The writ is dated April 27th, 1848.</p> <p>The plaintiffs introduced evidence tending to show that the paupers fell into distress in Palmyra, on February 6, 1847, and stood in need of immediate relief, and that supplies were furnished by Palmyra, and also, that the following notice was sent by the overseers of the poor of Palmyra to the overseers of the poor of Prospect, and by them received on or about the fifteenth of March, A. D. 1847: —</p> <p>“Palmyra, February 27, 1847.</p> <p>“ Gentlemen. — James Curtis, Eliza Curtis, wife of said James, and Lewis Curtis, Elizabeth Curtis, Rozilla Curtis, Frances Curtis, Eliza Curtis, William Augustus Curtis, their children, inhabitants of your town, have fallen into distress in this town,” &c.</p> <p>The defendants then offered to read, in evidence of denial, an answer from the overseers of Prospect, in words following:</p> <p>“ Prospect, March 19, 1847,</p> <p>“ To the overseers of the poor, of the town of Palmyra: — Tours of the 27th of February, was received about the fifteenth of March, touching the James Curtis family, and calling on us to pay the expenses incurred by them. Mr. Curtis was not a native of our town, but has frequently lived in Prospect, and we forthwith set ourselves about ascertaining whether he had gained a legal settlement in our town, and find he never did,” &c.</p> <p>This reply was seasonably received. The plaintiffs contended that the defendants were estopped by the answer from denying the settlement of the said Eliza Curtis, wife of said James Curtis, and Lewis Curtis, Elizabeth Curtis, Rozilla Curtis, Frances Curtis, Eliza Curtis and William Augustus Curtis. The Court, Wells, J. overruled the objection and allowed said answer to be read in evidence. The counsel for the plaintiffs except to the ruling.</p> <p>contended for the following positions: —</p> <p>1. The answer by the defendant town, applies only to James Curtis. It cannot be enlarged by implication. The wife and children may have their settlement in Prospect.</p> <p>2. By denying the settlement of one of the persons, named in the notice, there is an implied admission that the wife and children have their settlement in Prospect, and the defendants are estopped to deny it. R. S. chap. 32, sect. 1; Lancaster v. Rehoboth, 4 Mass. ISO; Bridgewater v. Dartmouth, 4 Mass. 273.</p> <p>3. If the notice had been no more specific than the answer, it could not have extended to the wife and children.</p>

Petition for a writ of certiorari. The respondents had a conveyance of 2730 acres of land in common and undivided, in township No. four, in the fifth range west of Kennebec river. , They applied for partition, alleging that they were seized of that quantity of the tract as tenants in common and undivided, with certain persons to them unknown.

This was an application to the District Court, Rice, J. for the appointment of commissioners to set off the public lots in an unincorporated township. After notice duly published, William Lowell, Jacob Lowell and Stephen Jewell appear, representing themselves to be part owners of the land, and resisting the prayer of the petition.

Exceptions from the District Court. Assumpsit on a note, dated February 5, 1847, for $75, payable to S. B. Kittridge or bearer, in one year.

Trespass quare clausum. The acts complained of are admitted. The plaintiff claims title to the locus in quo, by virtue of a deed from the treasurer of the town, which, it is admitted, the treasurer was authorized to give.

Petition eor partition of lands in Stetson, being the ministerial and school lots, in which the petitioner alleged that he was seized of an undivided half. The inhabitants of Stetson, by brief statement, alleged that the petitioner was not seized of any part of said lands, but that they were sole seized. At the trial, before Wells, J. the petitioner offered a deed from Samuel Stetson and others, and it was objected to.

<p>An order from the commanding officer of a militia company, addressed to a private in the company, directing him to warn the persons therein named, his own name being on the list with the others, to attend at a company training, is a sufficient warning for him to attend.</p>

Trover, for a quantity of pine mill logs. At the trial, before Wells, J. the plaintiff introduced testimony tending to prove, that in the winter of 1844 — 5, one Leander Preble, cut on his own land about 600 M. feet of pine lumber, and also cut on the land of the plaintiff, wrongfully and wilfully, about 100 M. feet of lumber of a similar quality, all of which lumber was marked with the same mark, and indiscriminately hauled and landed on the same landing place.

Debt. The declaration set forth a judgment of the Court of Common Pleas, recovered May term, 1836, by the plaintiff against Levi Cram and Benjamin Plummer, Jr., for damages in flowing the plaintiff’s land, by the mill-dam of said Cram and Plummer; and recited the petition, the appointment of commissioners, who fixed the annual damages at eighteen dollars, and the subsequent verdict of a jury and judgment thereon, fixing the annual damages at sixty-seven dollars and…

<p>Assumpsit on three promissory notes, all of the same date, signed by the defendants in their copartnership name, Lumbert & Fisher, payable more than six years before the suit, to a third person or order, and indorsed in blank.</p> <p>Fisher was defaulted. Lumbert pleaded the statute of limitations. On the trial, before Howard, J., the plaintiff introduced widow Cynthia Sibley, as a witness; she was objected to by defendant, as interested, because on the face of two of the notes in suit, was written in pencil, “property of Mrs. Sibley.” The objection was overruled. By her testimony, it appeared, that she became the holder and owner of the notes in suit, as her portion of her husband’s estate, and had transferred her interest to the plaintiff, before the commencement of this suit; that the indorsements on the notes, (being a number of partial payments from 1840 to 1845,) were all made by Fisher. That while she held the notes, in 1842, she called on Lumbert, for payment, and asked him for goods for the debt out of his son’s store. He declined paying in that way, but let her have ten dollars in money. This was in the summer of 1842. In October of the same year, she again called on Lumbert for payment, and his wife was present. Mrs. L. said the debt ought to be paid, and he said it would take all he had to pay the debts. He then let her have, towards these notes, a chaise valued at $250. The reason why this money and chaise were not indorsed, was that the defendant, Fisher, who was her brother, and had assisted her in her business, told her there was no need of indorsing it then ; that it would be charged, and be the same thing; that the defendants were copartners in trade, when the notes were given, and their partnership had never been dissolved to her knowledge, but they had not traded since 1840.</p> <p>Upon this evidence, the case was, by consent, taken from the jury, and submitted to the consideration of the Court. A nonsuit or default is to be entered as the legal rights of the parties shall require.</p> <p>The minute on the note was prima facie evidence, that Mrs. Sibley owned it. The case had nothing to repel that evidence. She was therefore wrongfully admitted as a witness for the plaintiff.</p> <p>Her testimony being excluded, the statute bar is in full force.</p> <p>Mrs. Sibley, when she received the payments of $10 and $250, made no appropriation. Had she appropriated those payments upon either one of the notes, the others would have been barred. By omitting to indorse the sums, she must be considered as having received them on account. Such a reception cannot be deemed a payment.</p> <p>She says she “ does not know that Lumbert said any thing about the debt.” How, then, can it appear that he intended to make a payment 1</p>

Debt, on a poor debtor’s bond. At the trial, before Allen, J. in the District Court, the defendants produced the record of two justices of the peace and quorum, and a certificate that the principal defendant took the oath prescribed, within the time limited in the bond.

Assumpsit on the following contract, dated March 31, 1842 : — “ The said Howard & Page agree to sell and deliver to said Patten & Dwinel all the ice which is at the following places, viz: — about 230 cords at R. K. Page’s ice house in Richmond, about 200 cords at Pittston, put up by John Jewrntt, and about 130 cords at hay-barn, so called, at Hallowed, in all about 560 cords.

In 1840, one Diana G. Emery brought an action against Lot Vinal and Waldo P. Vinal, and attached a lot of land on the writ. She recovered judgment and set off twenty-five acres of the land upon her execution in 1841. Afterwards, in 1842, she brought a writ of entry, against Levi G. Vinal to recover the land thus levied, and attached upon the writ, all his land within the county.

Assumpsit upon a note, of the following tenor. “ Borrowed and received one hundred and seventy-five dollars of T. A. White & Co., payable to their order, on Wednesday the 27th instant. “ J. A. Cushing & Co. “ Bangor, July 20, 1841.” On the back of the note was indorsed. “ Bangor, August 23, 1843. Received bill of goods rendered to T. A. White, $3,00. “ Without recourse to us.

Petition for a writ of certiorari, to the county commissioners of Penobscot. The petition, in substance, alleges that a way was duly laid out by the street engineers, a part of which was located over the land of Henry Warren, and they adjudged that he was not entitled to any damages. Warren petitioned the county commissioners for a jury to ascertain his rights ; and the commissioners adjudged that a jury should be empanneled, which was done.

Assumpsit, upon a policy of insurance of goods for one year. A classification of hazards was annexed to the policy, and referred to in the body of it. This classification exhibited certain sorts of goods to be not hazardous, others to be hazardous, and others extra-hazardous. Among the hazardous articles were enumerated oil, glass and tallow.

<p>Bill in Equity, praying for a decree, requiring the defendant to release to the plaintiff all his right, title and interest in and to a lot of land known as lot B.</p> <p>The bill alleged, that John R. Adan and others, trustees under the will of Benjamin Bussey, by their deed of July 6, 1844, duly made and recorded, conveyed to him, by metes and bounds, lot B, and that he entered into possession of the same; that on the 6th of July, 1841, the plaintiff took a bond for a deed of said land, from said Bussey’s agent; that by virtue of said bond, he, by his tenant, Samuel Lombard, built a house upon the land, and afterwards cleared, improved and cultivated from five to ten acres of it; that said Lombard and other persons, tenants of the plaintiff, continued to occupy and to improve the house and the land, cleared as aforesaid, and were in actual possession thereof, at the time of the conveyance to the defendant; that, while the plaintiff continued such possession, the defendant, between Jan. 1, and Aug. 1, 1847, broke and entered the lot and cut and hauled off a large quantity of pine trees; that the defendant claimed title to lot B aforesaid, by deeds of quitclaim and release, from the heirs of Francis Butler, one of the deeds being dated December 22, 1846, and the others, Feb. 2 and April 1, 1847; that defendant pretended that Bussey, in his lifetime, and prior to the conveyance of said lot to the plaintiff, on July 6, 1844, conveyed said lot B, to said Butler, who has since deceased ; that said Bussey, on the 30th July, 1834, conveyed by deed of warranty to said Butler, the following tract of land, to wit: “ being and lying on a new road leading from State street to Orono town line, and lying on the north-east side of said road, beginning at t.he north-west corner of lot B, thence, &c. &c., to place begun at, containing 178¿ acres more or less ;” that in drafting said deed, there was a mistake made in the point of beginning, whereby said deed was made to include the said letter B, against the intention of the parties thereto; that neither said Butler or his heirs ever entered into actual possession of any part thereof; that the whole mistake consisted in using the words “ north-west,” instead of “ south-west” corner of lot B, as the place of beginning; that all the calls in the description in said deed, would then be answered by monuments upon the face of the earth, and the quantity of land would agree with the number of acres specified.</p> <p>The bill also alleged, that defendant well knew all the facts, touching said mistake, and misdescription, and also that the plaintiff was in possession of said lot B, claiming to own the same by his deed aforesaid, duly recorded ; that said mistake was not discovered by said Bussey in his lifetime, nor by said trustees, prior to their conveyance to the plaintiff, nor by the plaintiff until after said conveyances to defendant; and that defendant insists upon his title to lot B.</p> <p>Defendant in his answer admitted nearly all that was alleged in the bill, except the charge that he knew of the mistake and of the plaintiff’s occupation of the land. His answer on this part of the case was, that at the time of his purchase, he had never seen the land, and knew nothing about the monuments, that he knew nothing of plaintiff or of his possession of lot B, or of any mistake real or supposed, in the deed to Butler. He was told, there was a lot of land on Essex street, belonging to the Butler heirs, valuable among other things for its pine ; that he sent an agent to explore, who reported favorably, and the next day he went to the owners to purchase it, and they conveyed in the precise words of the grant to their father, deceased 18 months before.</p> <p>The case of Peterson v. Grover, 20 Maine, 363, is decisive of the jurisdiction and power of this Court as a Court of equity.</p> <p>It is also decisive of the case at bar, on the merits, unless this case is distinguishable from that.</p> <p>In this case, the mistake is admitted as stated in the bill, or rather the facts from which it is deducible.</p> <p>The only question is, whether Weston is affected by it, as the grantee of the heirs of Butler, the original purchaser from Bussey.</p> <p>Weston’s title from the minor heirs, is a mere naked release of “ all their right, title and iuterest” in the lot mistakenly described, and he took from those heirs, wffio were of age, a quitclaim deed only, of all their right, &c.</p> <p>Weston thus stands in the place of Butler and his heirs at law. Between them and Bussey, there could be no doubt of the power of the Court, to grant relief; and Weston is their representative and must yield to the same principles affecting his title. Rev. Stat. chap. 91, sect. 8.</p> <p>The heirs of Butler had a legal estate originating in mistake, and Weston has no more, and is subject to be set right in equity.</p> <p>Weston is thus liable, whether he had notice of the mistake or not.</p> <p>But he had notice, actual or constructive, sufficient to affect his title, or to subject him to the correction of the mistake. Warren v. Ireland, 29 Maine, 62. Washburne v. Merrills, 1 Day’s Cases in Error, 139, is a strong case for the plaintiff. Story’s Eq. sect. 399 to 409.</p> <p>The notice affecting Weston’s title, if any is necessary, need not be so full as that affecting a subsequent purchaser, in case of an unregistered deed.</p> <p>The case, 1 Day’s Cases in Error, was as follows : —</p> <p>A mortgager, by mistake, made an absolute deed ; and the mortgagee who got into possession, sold to a purchaser, by a deed with covenants of warranty. A purchaser under the mortgager, filed his bill against the purchaser under the mortgagee to redeem. The answer set up the statute of frauds in defence, and on trial, parol proof of the mistake was offered by the plaintiff and admitted, and the deed reformed, and a right of redemption decreed. No point was made of the want of notice. This decree was unanimously confirmed by the Court of errors. Cases cited. 1 Sug. Vend. 6th Amer. Ed. 180, (259 old) note.</p>

<p>The interest of a mortgagee in land, prior to foreclosure, is not attachable.</p> <p>A conveyance of land, belonging to a copartnership firm, in which all the co-partners join, carries with it a presumption, in the absence of any proof, that the consideration money went to the benefit of the firm.</p>

Trespass de bonis asportatis, for a quantity of cedar railroad sleepers, juniper knees, shingles, and juniper timber. At the trial, before Wells, J. it appeared, that the lumber was cut in the winter of 1840-1, by one Samuel Potter, a part on the land of defendant, and a part on land of Timothy Boutelle, the two tracts being contiguous in the town of Alton.

Assumpsit, against defendant as drawer of a bill of exchange, accepted and protested for non-payment. At the trial, before Wells J. there was no question as to notice. The defendant called a witness who testified that on the day the draft was drawn, the defendant, then being sick, showed to the plaintiff a letter from the acceptor, ordering the purchase of some specified lumber for a certain schooner, and directing him to draw on the writer for the amount.

Petition for certiorari. The substance of the petition sufficiently appears in the arguments of counsel and the opinion of the Court. The following causes were assigned therein against the legality and validity of the doings of the Commissioners, in laying out and establishing the highway. 1.

Assumpsit upon a note of the following tenbr : — “ $700. Orono, Dec. 4. 1837. “ Value received, we jointly and severally promise to pay William and Jeremiah Colburn, or order, seven hundred dollars in June next, with interest. “ Hervey Kimball, “ William Averill.” The name of the defendant was in blank upon the back of the note.

Writ op entry to recover a lot of land with a house thereon, in Oldtown.

Assumpsit, to recover rent. These facts were admitted by the parties. The plaintiffs made a lease of a tenement in Oldtown to the defendants, on the 8th of .Tune, 1843, for the term of one year, for thirty-five dollars to be paid in quarterly advance payments, and for such further time as the lessees may hold the same. The defendant, Moore, went into immediate occupation under said lease, and remained in possession until sometime in December, 1844, when he moved out.

Debt upon a bond, for the conveyance of land from defendant to the plaintiff. The bond was in the penal sum of $800, reciting that the obligee was to pay for the land $800, for which he had then given his eight notes of $100 each, payable, one of them each year, with interest, and conditioned that the obligee should have a deed, if he should punctually pay the first note, and give back a mortgage to secure the residue.

<p>A certified copy by a justice of the peace, of a record of a judgment rendered by him, is the proper evidence, on a plea of nul ticl record, to support an action of debt upon such judgment.</p> <p>But it is competent for the defendants to prove, by parol, that what purports to be such a certified copy is not authentic.</p> <p>One who has been a justice of the peace, has no authority to certify copies after two years from the expiration of his commission. Authentications made by him after that term are merely void.</p>

Assumpsit.. The jury returned into Court the papers committed to them, with a verdict of $592,08, in favor of the plaintiff’, which was received, affirmed and constructively recorded. The plaintiff, after making some examination of the papers, suggested to the Court, that the jury had fallen into a mistake in fixing the amount of the damages, and moved, that the papers be recommitted to them, and that they be sent out to re-examine the subject.

Exceptions from the rulings of the District Court, upon an indictment for a defect in a highway, whereby one White was alleged to have lost his life. The verdict established the fact, that White, while in the use of ordinary care, lost his life through a defect in a highway of the city of Bangor, of which defect the city had seasonable notice. The indictment was found more than two years after the accident. 1. The statute of limitations is a bar to this indictment.

Covenant broken, upon the covenants contained in a deed of real estate given by Benjamin Bussey, the defendant’s intestate, to N. D. Coombs, his heirs and assigns. The covenants were that Bussey was seized of the premises, and had lawful right to convey. The land was conveyed by Coombs to the plaintiff. Whitman, C. J. ruled that the action was not maintainable, because brought in the name of the assignee of the intestate’s grantee.

Debt on a debtor’s six months bond. He read a certificate from two justices of the peace and of the quorum, that he had, within the six months, taken the oath mentioned as one of the conditions of the bond. To avoid the effect of that certificate, by showing some defects in the proceedings, the plaintiff introduced certain documents, which were objected to, but are to be used, so far as legally admissible in evidence. These documents were : — 1.

<p>The expense of making highways through unincorporated tracts of land, is to be borne wholly by the proprietors; or wholly by the county; or by both jointly, in such proportions as the County Commissioners shall adjudge.</p> <p>In locating such a highway, it is indispensable to the validity of their doings, that the Commissioners decide at whose expense, in whole or in part, the highway shall be made; and also whether the tract or any part of it, and what part of it, if any, will be enhanced in value, by means of such location.</p>

<p>Writ of entry, to recover seven-eleventh undivided parts of a farm, in Corinna. The plaintiffs are heirs of Enoch Hayden, who died in May, 1834, to whom the farm once belonged, and are seven of the eleven children remaining. Writ dated Feb. 8, 1847.</p> <p>' The tenant exhibited a mortgage deed, given by said Hayden to the town of Corinna, in 1823, conditioned to support -one James Adams and wife, and save said town harmless, and also an assignment of it, from said town to himself, dated in July, 1848. Since the commencement of this action the title of one of the plaintiffs has been acquired by the tenant. The Court allowed the other plaintiffs to amend the writ by striking out his name.</p> <p>While Enoch Hayden lived, he continued to maintain Adams and wife. They survived him four or five years, during all which time they were supported by the widow and children of Hayden, but chiefly by the oldest son, Freeman, at whose request the mortgage was assigned by the town to the tenant, as above stated. Susan, one of Hayden’s daughters, while a minor, deeded her portion of the estate, which came by mesne conveyances, to the tenant. She and her husband are plaintiffs in this suit, to recover back the same.</p> <p>In January, 1836, the administratrix of said Hayden’s estate, obtained license from the probate court, to sell land to the amount of $250, £or payment of his debts; and in December, 1837, she made a sale to the tenant.</p> <p>After the commencement of this suit, application was made to the judge of probate, by the administrator de bonis non, upon the estate of Hayden, to sell the land for the payment of debts. From the decree granting the license, an appeal was taken, and is now pending in this Court.</p> <p>The Judge instructed the jury that, under the deed from the town of Corinna to the tenant, he could acquire no title in the premises; that the proceedings in the probate court, and the doings under the same, were inoperative to affect the demand-ant’s title to their six-eleventh parts ; that the deed from Susan Hayden, having been executed during her minority, was voidable, and she, by bringing this action, having elected to avoid the same, it was now inoperative, unless, after having arrived at the age of 21 years, she had confirmed the conveyance by some act or declaration.</p> <p>The jury returned a verdict for the demandants, for six-elevenths of the land.</p> <p>Exceptions were filed to the rulings and instructions.</p> <p>The deed of Susan Hayden was only voidable. It was given but a few months before she arrived at her majority; she did no act to disaffirm it for ten years. Her assent to it is to be presumed from lapse of time. This suit is not her act, but her husband’s. Being voidable only, she should have given notice, or done some act in disaffirmance, in a reasonable time after arriving at her majority.</p> <p>The tenant further claims to hold the premises, as assignee of the mortgage, given by Enoch Hayden to the town. Carl v. Butman, 7 Greenl. 102.</p> <p>Enoch Hayden agreed to support the paupers, and secured his contract by the mortgage. This mortgage was outstanding at the time of Hayden’s death, the paupers still living, and relying upon the town for support. The premises were holden for their maintenance, and must have been sacrificed, if some one had not interposed to prevent it. To save the estate, and acquire a solid title, Freeman Hayden assumed the obligation, and supported Adams and his wife. He thus became the purchaser of the mortgage; as much so, as though he had paid a sum of money due. All his rights thus acquired, were duly transferred to the defendant by the assignment of the mortgage. The persons who supported Adams and wife, after the death of Enoch Hayden, were mere strangers to the transaction between him and the town. They were under no obligations to discharge his bond. They acquired the same rights of any other persons purchasing. If the town, upon the death of Enoch Hayden, had contracted with some other person to support Adams and wife, and had transferred the mortgage to such person, he would have had a claim upon the estate for what he might so expend ; or if the town had supported them, the cost would have been charged upon the land, and his heirs must have paid up the incumbrance, before they could hold the premises. So the defendant has a right to hold the premises for what it cost to support James Adams and wife, after the death of Enoch Hayden.</p> <p>The acts of the town in their assignment to the tenant, show that they recognized a contract with Freeman, for the support of the paupers.</p> <p>It may be said the town sustained no damage, and therefore the mortgage became void. But the assignee, who stood in their place, sustained the expense of supporting Adams and wife for years.</p> <p>The Court will uphold a mortgage, when it is for the interests of the assignee. Defendant has no remedy unless he can hold under this mortgage. Thompson v. Chandler, 7 Greenl. 377 ; Gibson v. Crehore, 3 Pick. 475.</p> <p>The estate is still under administration, and a petition is pending for leave to sell enough of the estate to pay the debts. There is no other property.</p> <p>The demandants cannot maintain this action, as it was not commenced within five years from the time of sale by the administrator. Rev. Stat. chap. 112, § 18.</p> <p>Here was a petition to sell by the administratrix, a license to sell and other formalities complied with, and a sale made as shown by the deed introduced. The statute contemplates that there may be defects in such sale, and is therefore peremptory that they must be taken advantage of within five years. The deed of the administratrix must now be considered good.</p> <p>The demandants are entitled to six-elevenths of the premises, unless the tenant shows a better title.</p> <p>He claims under the administratrix’s deed of December 9, 1837. This deed is void because she did not sell within one year from the date of probate license. Whoever claims under a statute conveyance must show a statute compliance. Stat. of 1821, chap. 52, § 3 and 12.</p> <p>Another source of the tenant’s title is a mortgage deed from Enoch Hayden to the inhabitants of Corinna, and an assignment of the same to himself. That deed was not assignable, it did not run to the town’s assigns. They were special trustees, and the mortgage was a personal trust.</p> <p>The town never sustained any damage, consequently the mortgage became void.</p> <p>There was no notice or request made to the overseers. R. S. chap. 32, § 48.</p> <p>There was no understanding between overseers and Freeman Hayden about pay, or an assignment of the mortgage. This is all an afterthought, brought in here to bolster up a defective title, made in July, 1848, more than a year after this suit. Freeman Hayden had no legal claim against the town.</p> <p>The petition of the present administrator to sell the estate for the payment of debts, as it respects the demandants, may be regarded as an idle act, the same being appealed.</p> <p>As to the amendment allowed, of striking out the name of the demandant, who conveyed his interest after the suit to the tenant, see Thayer v. Hollis, 3 Mete. 369; Rehoboth v. Hunt, 1 Pick. 224.</p>

<p>The right to redeem real estate, levied on execution, is limited to one year from the levy.</p> <p>This principle is not altered by the 28th scot, of Rev. Stat. chap. 94. That section merely provides an additional mode of ascertaining the amount to be paid. That mode is by bill in equity. But such process must be commenced in season to have the amount ascertained and brought into Court, before the year, allowed for the redemption, has expired.</p>

<p>When the immediate effect of a judgment in favor of one of the parties is to confirm a third person, in the enjoyment of an interest in possession, such third person is not competent as a witness for that party.</p> <p>Thus, in a writ of entry, if the defeat of the action would leave a third person in the further occupation and use of the land, of which he claimed to be in possession, such third person cannot be a witness for the defendant.</p> <p>D. had been in possession of a lot of land. The defendant was afterwards found to be in occupation of it, and he refused, on request, to surrender the possession to the demandant. In a suit for the land, he set up in defence, that in occupying it, he was acting merely as the servant of D. to whom the possession belonged.</p> <p>Held, that D. was not competent as a witness for the defendant.</p>

Trespass, to recover for rents and profits. Challes J. Trueworthy, in October, 1846, mortgaged to plaintiff certain mills, house and lands. The defendant at the time, was a tenant at will of the property under Trueworthy, and has occupied over since. In February, 1847, the plaintiff entered upon the premises with a witness, and claimed possession of the same, and notified the defendant to pay subsequently accruing rents to him, or leave the premises.

Replevin, for 1478 pine logs, tried before Wells, J. upon the general issue and a brief statement, alleging title in the defendants, denying the title of the plaintiffs, and praying judgment for a return. The plaintiffs read a permit from Isaac Farrar & als. to themselves, of Sept. 6, 1845, to enter upon lots No. 1, % 7, 8 and others, in township No. 3, range 13; and cut and haul timber therefrom, during the then next logging season.

Scire Eacias, against the defendant, who was summoned as trustee, and was defaulted. He disclosed on the scire facias, and was charged upon the disclosure. To that adjudication he excepted. The facts disclosed are stated in the opinion of the Court. One partner cannot be charged as trustee of another. He has no “ goods, effects or credits” of the other in his hands; for the other has the same interest in, and possession of them that he has.

Asshmpsit, on two notes of hand, dated Sept. 11, 1835, for $200 each, made payable to Thomas Bradbury and Charles G, Bryant, or their order, in one and two years with interest annually. The notes were indorsed by said payees, “ without recourse.” At the trial, before Wells, J., the defendant offered in evidence the deposition of Thomas Bradbury, who was one of the payees and indorsers of said notes.

Covenant broken. The declaration contained several counts; one upon the covenants in a mortgage deed of land from the defendant to the plaintiff, dated November 21, 1837, and another upon the covenants in a quitclaim deed from the defendant to the plaintiff, dated October 5, 1843.

<p>Assumpsit, for supplies furnished to a pauper, whose settlement was alleged to be in Brunswick.</p> <p>There was much testimony introduced at the trial, before Siiepley, C. J., as to the settlement of the pauper.</p> <p>The jury were instructed, as to the facts needful to constitute a settlement, and as to the mode in which a settlement may be lost.</p> <p>To those instructions, and also to the ruling, relative to the admission of proof as to the handwriting of Judge Perham, as stated in the opinion of the Court, the plaintiffs excepted.</p>

Exceptions from the District Court, Allen, J. Assumpsit on a note to pay twenty-five dollars worth of merchantable boards and clapboards, at the defendant’s mill, at a specified time. The defendant proved that, at the requisite time and place, he set apart hemlock boards and basswood clapboards to that amount, as a payment of the note.

<p>If the assessors of a town, through an error in judgment, make upon one of the inhabitants, an over-valuation of his property, and thereby assess him too much in the list of town taxes, or tax him for property not belonging to him, his remedy is not by an action at law, but by an appeal to the County Commissioners.</p> <p>The right of action against a town, given by R. S. chap. 14, sect. 88, for the recovery of damages, occasioned by a mistake, error or omission of the assessors, does not extend to errors in judgment, made by them respecting the value of personal property, liable to be assessed.</p>

<p>A copartnership firm was dissolved, upon an agreement that one of the members should assume and pay the company debts. A creditor, on being afterwards informed of the arrangement, replied that he was satisfied with it. Held, that reply was not evidence, from which the jury could find that • he had discharged the other member of the firm.</p> <p>A parol contract to discharge one of two joint debtors, if made without consideration, cannot be enforced. — Per Howakd, J.</p>

<p>A feme covert was tenant for life in one third of a lot of land, and tenant for years of the other two thirds. Her husband erected a house on the land, and caused it to be insured as his property, by the defendants, for four years. One article of the defendants’ by-laws was, that the policy should be void, if the assured should sell or alienate the property in whole or in part, without their consent. During the lile of the policy, the plaintiff and his wife conveyed to the reversioner her life estate, on condition that the grantee should pay her a fixed sum annually, during her life. The plaintiff at the same time, conveyed to said reversioner all his interest in the other two-thirds, and took back a mortgage upon the whole estate to secure the,payment of several sums in yearly instalments. The mortgager entered into possession. The house was afterwards destroyed by fire before any of the abovementioned sums had become payable by him. Held, that the plaintiff at the date of the policy, had an insurable interest in the house; held also, that by said conveyances, the house became a part of the realty ; held also, that said conveyances constituted such an alienation as defeated the policy.</p> <p>To constitute such an alienation, it is not necessary that there should be an absolute tranfer of the whole or of any distinct portion of the property. If there has been such disposition of it, that any property has been passed to another, the alienation has occurred.</p>

Bill in equity, charging that the plaintiff is a creditor of one William Smith, and that the defendants have received and now hold the property of said Smith, by a fraudulent trust, for said Smith’s use, and to defeat his creditors. The defendants filed a cross-bill, presenting to the plaintiff, Haskell, certain interrogatories. The character and the decisive effect of the plaintiff’s answer are stated in the opinion of the Court.

This was a writ of error brought to reverse a judgment of the Police Court of Bangor, in a suit commenced by Howard, as ensign and commanding officer of a company, in which Crawford was alleged to be liable to do militia duty, to recover a fine for his non-appearance at a May inspection of 1842. At the time of the inspection, there was a clerk of the company, but on the 23d day of said May, he resigned his office.

Exceptions from the District Court, Allf.n, J. The action was upon a joint and several note, dated June 15, 1836, on demand. The writ, dated Sept. 19, 1846, also contained a count for services, and for money had and received. The only defence to the suit was the statute of limitations. Emerson was defaulted. To avoid the operation of the statute, the plaintiff showed an indorsement upon the back of the note made by Emerson, one of the defendants, as follows: — “Nov. 10,1843.

Exceptions from the District Court, Hathaway, J. The action was upon a note, as follows : — “ For value received, I promise to pay Leonard March, executor, or order, fifty dollars on demand and interest.” The note was indorsed to the plaintiff. Leonard March was executor of the will of Amos Patten. Susan, widow of said Amos, and others, were annuitants under said will, and the defendant and three others were residuary legatees.

Exceptions from the District Court, Hathaway, J. Assumpsit for money had and received. It appeared that the defendant bought a horse of one Seaver, in Sept, 1847, and was to give $65, and if he should sell him for more, he was to give Seaver one half of the excess. He went back the same day, and told Seaver he had sold the horse to plaintiff for $80, paid him the one half and requested him to say nothing about it.

<p>A grant to the defendant to have in his own flume, (which is supplied with water from the plaintiff’s dam,) “ a gate of twelve inches square, or equal to that,” was keld not to justify the use, within the flume, of a horizontal wheel, four and a half feet in diameter, propelled on the reaction princi- , pie, by the escape of water from the flume, through the wheel by twelve apertures, distributed over an area equal to several square feet, although the areas of all the apertures do not, in the aggregate, amount to more than twelve inches square.</p> <p>Under such a grant, the grantee is not authorized to apply water upon a wheel, revolving within the flume; nor in anyway, except outside of the flume and through an orifice or orifices in the flume. — Per Wells, J.</p> <p>Whether the allowed quantity of water can lawfully be taken through more than one orifice, quaere; but if so, it must all be taken through a gate or space not containing a superficies of more than twelve inches square. — - Per Wells, J.</p>

Assumpsit. The plaintiff sold lumber to W. W. Harris on credit. The contract of sale was signed by both parties. By it, Harris promised to pay the price, and plaintiff retained a lien for his security. Soon afterwards, the plaintiff, wanting to raise money, procured Adams & Co. to give him their accommodation note of $1000.

Covenant broken, upon the covenants in a conveyance by a warranty deed to the plaintiff of a lot of land containing some valuable factory buildings just erected by the defendants. The breach was alleged to consist in several levies upon the land, by persons who, subsequently to the said conveyance, attached the same in suits against the grantors, for the recovery of lien claims, for labor and materials in the erection of the factory buildings.

Debt on a judgment recovered before a justice of the peace. The action was referred. The referee made an alternative award, and reported the following to be the facts, viz: — “ After a part payment was made on the execution it was placed in the hands of an officer, and the officer indorsed thereon over his official signature, as follows: — “ Penobscot, ss. May 12, 1840.

Exceptions from the District Court, Goodenow, J. The action was for supporting a pauper. The question was, whether his residence was in Bradford, on the 12th day of March, 1831, upon which day the town was incorporated.

<p>An order, for a valuable consideration, payable to the bearer, was drawn by the selectmen upon the treasurer of the town. It was immediately passed by the holder into the hands of the collector, in payment of taxes, and he afterwards negotiated it to the plaintiff.</p> <p>contended —</p> <p>1st. That the selectmen had no authority to issue negotiable paper; that they could only draw upon funds, and that therefore the defendants are not bound.</p> <p>2. That the collector is to be considered, in this respect, as an agent of the town ; and the discharge of taxes, due to the town, to the amount of the order, was a payment of the order.</p>

Assumpsit on a note made to the plaintiff in 1840, payable in one year. The writ is dated in 1846'. The defence set up is, that the defendant is a certificated bankrupt, having obtained his discharge in 1846, upon his petition filed in 1842. The plaintiff proved an unequivocal verbal promise, made by the defendant to the plaintiff in 1845, to pay the note.

<p>Exceptions from the District Court, upon a petition by the County Commissioners for the location of the public lots in an unincorporated township. Spofford, the respondent, appeared to resist the location, and filed the exceptions. The petitioners moved that the exceptions be dismissed.</p> <p>The Court has jurisdiction. Bridgton v. Bennett, 23 Maine, 422. Our statute allows exceptions in cases other than those according to the common law. Even if certiorari could be granted, it is not matter of right, but merely at discretion. It is therefore but an inadequate remedy.</p>

<p>Debt on a poor debtor’s six months bond. The debtor had within the six months, taken the oath, mentioned as one of the conditions of the bond; and the defendants relied upon the certificate of two justices of the quorum, to that effect. The bond was dated December 1, 1846.</p> <p>It was admitted that neither, at the time of giving the bond or of making the disclosure, had the debtor any property not exempt from attachment and execution.</p> <p>Several objections were raised against the organization of the justices’ court.</p>

In a former action, between the parties, entered at the May term, 1842, the defendant was defaulted, and judgment on the default was rendered Dec. 1842. This is an action of debt, upon that judgment. The plaintiffs reside out of the State. The writ is indorsed, “ Jewett & Crosby,” which is the name of a copartnership firm, the members of the firm being resident and doing professional business in Bangor.

Writ op entry. The demandant makes title under a levy of an execution in favor of one Whipple. The amount due upon the execution was $114,76. In the levy, the land was appraised and set off at the value of $139,28. The officer returned his fees and the expenses of the levy to be $12,26 ; apparently taking land to the value of $12,26 more than was sufficient to satisfy the execution. The error was merely the mistake of the officer, by including his fees and charges twice.

Replevin for a wagon and harness, valued in the writ at $50, and two buffalo robes, valued at $6. When the case went to the jury on an issue of property, they had no instruction to find the value of the property ; nor was any such instruction asked by either party. . Their verdict found the property of the wagon and harness, to be in the defendant, and that of the robes to be in the plaintiff, but no value was assessed as to either of the articles.

Exceptions from the District Court, Allen, J. Case for obstructing a street or passage way, to the injury of the plaintiff. The plaintiff exhibited a deed from Emery and another, to Sleeper, of July 15, 1836, conveying lots No. 29 and 30, according to the plan; and also several intermediate conveyances by which the estate conveyed to Sleeper, vested in the plaintiff.

Libel against the mayor and clerk of the city of Bangor, for a statement contained in their annual printed report of the financial condition of the city, for the year 1845. The words alleged to be libelous were as follows. — “Balance due from John Lancey, collector of taxes for 1836, $6004,50.” It was conceded, that the plaintiff was the collector of taxes for 1836.

<p>Where a note is made payable at any bank in a specified city or town, a demand at either bank is sufficient to charge the indorser. No previous notice need be given to him, at what bank the holder will make the demand.</p>

Assumpsit, to recover for the funeral expenses of Elias Anthony Belbarb, and for supplies to his widow and minor children. At the trial, before Wells, J. two questions were presented to the jury, viz : — 1. Whether Mrs. Daily and her husband dwelt and had their home in the town of Trescott, on the 7th of Feb’y, 1827, the time of the incorporation of said town ? 2. Whether she emancipated her son Elias, the pauper, before the 7th of Feb’y, 1827 ?

Trespass, for wilfully and maliciously setting fire to and burning and destroying the plaintiff’s barn, with its contents, consisting of, &c. There were three counts. The first two were founded on the statute, for the treble damage ; the other was at the common law. The defendant’s counsel offered evidence of the defendant’s good character. It was objected to and excluded.

Exceptions, from the District Court, Hathaway, J. The defendant was indicted for secreting the treasury book of records, of the town of Amity. As the clerk proceeded to impannel the jury for the trial, the government objected to one, who was called from said town of Amity.

<p>The Revised Statutes, chap. 1, sect. 1, provides that every statute shall take effect in thirty days from the recess of the Legislature passing the same, unless the provisions of any statute shall otherwise prescribe.</p> <p>That section applies, and is in force, as to private as well as public statutes.</p> <p>Where the charter of a bank is surrendered and accepted, but its power is continued in existence for a limited time, for the purpose of closing its affairs, it is legal that the directors should appoint a cashier under the general banking law.</p> <p>If the directors were chosen and recognized by the proprietors of the bank as the only board, and they appointed the cashier, who acted under that-appointment by their direction, it is not competent for the debtors of the bank to avoid their contracts, on the ground that the directors were not chosen strictly according to the provisions of the statute.</p> <p>A trustee, created by a bank, may maintain a suit in his own name on a note payable to the bank and indorsed to him while the corporate capacity existed, though the action may not be commenced till afterward.</p>

Exceptions. Assumpsit, on two notes of hand, each of $120, given for 10 tons of merchantable meadow hay, and “ a logging chance” in township No. 9. The hay was valued at $120;'and the “chance” at the like sum. Wells, J. presided at the trial. It appeared that defendants went on and lumbered, and also took between three and four tons of the hay, but did not take the remainder, because they said it was not merchantable.

This was a writ of entry. The jury returned a verdict for the demandant for one sixth of the demanded premises. The facts necessary to an understanding of the case, sufficiently appear in the opinion of the Court.

Writ oe entry. The tenants disclaimed a portion of the land. The part, not disclaimed, is a strip four rods wide, extending from the shore of the St. Croix river, one hundred and fifty-three feet upon the flats in tide-water. The first, or inner ninety-five feet from the shore, was taken by the tenants under claim of a right conferred by their railroad charter; and it is covered by a wharf which they erected.

<p>In an action upon a receipt to deliver property attached by a deputy sheriff, it is no defence, that subsequently to the expiration of the thirty days after judgment in the suit upon which the attachment was made, the original debtor died, unless, in the probate court, his estate was represented insolvent.</p> <p>Although such receipt was taken by direction of the creditor, and the officer’s liability in making the attachment is discharged, the creditor can still enforce the payment of such contract in the name of the officer.</p>

Assumpsit. The view, taken by the Court, dispenses with any thing further than the following mere outline of these cases, although quite a mass of facts are reported, from which it seems to have been supposed the balances between the parties could be ascertained. The ownership of the brig Friends, of the Province of New Brunswick, was divided into thirty-two shares. Each of the plaintiffs owned one share.

Assumpsit, for the support of William B. Scott and his family, alleged to be paupers. The case came before the Court upon the following facts. Scott was born in 1774, in that part of the town of Machias, which, on the division of that town in 1826, was incorporated into the present town of East Machias.

Writ of entry. The demandants proved title in Oliver •Putnam, in the year 1820 ; also an authenticated copy of his will, allowed in Massachusetts, in 1826, and also recorded in the Probate Court of the county in 1844; by which Caleb Cushing and two other persons were appointed executors, and devising to them large real and personal estates in trust. Cushing alone accepted the appointment. The character of the trust is given in the opinion of the Court.

<p>Land, owned in common by different proprietors, which has been taxed and sold at auction, in solido, for the payment of county taxes, may be redeemed by any one of the co-tenants.</p> <p>The purchaser may refuse to receive any part, without the whole, of the amount for which he is entitled to hold the land.</p> <p>When one of the proprietors has redeemed his own part and also the part of another co-tenant, and taken the purchaser’s release thereof, a subsequent tender to the purchaser, by such co-tenant, of his proportion of the amount for which the land had been holden, though made within the time allowed by law for redeeming, is of no effect.</p> <p>Such redemption of another’s share, by one of the co-tenants, will transfer to him a lien thereon for a reimbursement, though it will give him no right of action to enforce it.</p> <p>Until such reimbursement has been made or tendered to the co-tenant who redeemed, or to the owner holding under him, no action can be maintained, by the delinquent co-tenant, against either of them for the recovery of the land.</p> <p>If, after the time allowed by law for redeeming has expired, the auction purchaser should sell and convey the land to one of the co-tenants, the-other co-tenants could derive no rights therefrom. — Per Siiepley, C.</p>

<p>Replevin for lumber, which the defendant had attached as an officer. The defendant offered as a witness one Lippencott, who was the agent of the attaching creditors, and who, to inquiries made by the plaintiff, replied, on the voir dire, that he did not recollect having promised the defendant to save him harmless for taking the lumber, and from his habit, should think he did not so promise; and that he had no knowledge of holding himself for costs. The plaintiff then offered to prove by another witness, that the defendant had admitted that Lippencott had promised to save him harmless for taking the lumber. The Court ruled that such offer was too late to show an interest in the witness, and was inadmissible for that purpose, but was admissible to contradict the witness and impair his credibility, but not sufficient to authorize his rejection.” Lippencott then testified for the defendant, in whose favor the verdict was rendered ; and the plaintiff excepted to the rulings.</p>

Appeal, from a decree of the Judge of Probate, authorizing the plaintiff to commence a suit at law for the recovery of his claim against the estate represented by the defendant, and which claim had been rejected by the commissioners of insolvency. Before the commissioners the plaintiff’s claim was presented, and by them rejected, and an appeal was filed in the probate court, after the commissioners had made their report and returned a list of claims.

<p>[This is one of the Washington county cases, and was published, vol. 29, page 183. The dissenting opinion of Judge Wells, was then mislaid. The profession will, no doubt, take pleasure in its present publication.]</p>

<p>Assumpsit, upon an instrument signed by the defendant, of the following tenor: — “ We, the subscribers, severally promise the South Bay Meadow Dam Company, the sum of twenty-five dollars, for every share of stock set against our respective names, in such manner and proportions and at such times, as the directors thereof shall order, pursuant to an act entitled an act to incorporate the South Bay Meadow Dam Company, and the by-laws of said company.” Against the name of defendant was written one share.</p> <p>The case came before the Court upon an agreed statement of facts. The act incorporating the company was passed July 31, 1846. Among other things, it authorized the company to take, hold and possess any personal property, to an amount not exceeding three thousand dollars, and any real estate to an amount not exceeding fifty thousand dollars. The by-laws, and the records of the directors of said company, and the subscription paper were submitted to the Court.</p> <p>The suit is brought to recover two assessments, one of $10, and the other of $ 15, made on the defendant’s share.</p> <p>The clerk of the company did not file in the office of the register of deeds for said county a certificate of his appointment, as required by chap. 76, "§> 3, R. S.</p> <p>The assessments sued for were made known to the defendant, and demanded of him before the commencement of the suit.</p> <p>The company had expended large sums in the erection of the dam, before the writ was sued out, and the defendant had on several occasions, signed memorials to the directors.</p>

<p>This was an action upon an award made under a common law submission.</p>

<p>Exceptions, from the District Court.</p>