Volume 31 — Maine Reports

Case for maintaining a dam across Little river, and thereby obstructing the passage of the plaintiff’s logs. Held: that this stream is a navigable one in time of freshet, and thus, at such times, a common highway ; but not capable, in its ordinary state, of floating logs, the plaintiff would have no right to use it as a highway, except in times of freshet; and if, at the time alleged in plaintiff’s writ, the stream was in its ordinary condition,…

<p>Where an assignment of real estate has been made for the benefit of creditors, it is not requisite, in a bill in equity against the assignee relative to the property assigned, that the creditors should be made parties. The assignee is supposed to represent and protect their interest.</p> <p>Mortgagees of real estate, or their assignees, hold the mortgaged property, for the benefit of the owners of the debts secured by the mortgage.</p> <p>Where the several debts, secured by such a mortgage, have become the property of different persons, and the assignee of the mortgage has foreclosed; he holds the property, with the rents and profits thereof, in trust for the holders of the debts, according to their respective amounts.</p> <p>Such a mortgage, and a part of the notes secured by it, were assigned to the defendant, who perfected a foreclosure. When talcing the assignment, he had knowledge that one of the notes was in the hands of another owner. It was Held, that such owner was entitled, at equity, to recover his proportionate part of the mortgaged property, and of its rents and profits.</p> <p>The execution of such a mortgage, and of the notes secured by it, is a sufficient compliance with the statute provision, (chap. 91, § 81,) that trusts concerning lands shall be created and manifested in writing.</p>

<p>Where one tenant in common has received the rents and profits of the common properly, he is accountable, in assumpsit, to a co-tenant for his share.</p> <p>In such an action, to recover the plaintiff’s share of the avails received by the defendant', for the use of a grist-mill, in which both parties, and a third, person were co-tenants, it is no defence, in whole or part, that the defendant has incurred expense in repairs upon the mill, unless such repairs were made pursuant to the provisions of the Revised Statute, chap. 86.</p> <p>When the notice, calling a meeting of mill owners to decide upon the subject of repairs, is given by a copy served upon each one, the statute has not prescribed what length of time, previous to the meeting, the notice should be given. It is therefore to be a reasonable time.</p> <p>At such meeting, it is not necessary that the decision of the mill owners should be taken by a vote, or that any record or other writing should be made concerning it.</p> <p>The law will justify no repair, whereby to charge one of the part owners against his consent, except so far as to make the property serviceable.</p> <p>But if, after pursuing the mode of procedure, prescribed by the statute, a part owner has made -repairs beyond what was necessary to render the property serviceable, his lien will be good for such part of them as were necessary for that purpose.</p> <p>If he has been reimbursed to that extent out of the joint profits, he will be accountable in assumpsit to his co-tenant for his share of the surplus, if any.</p> <p>In such an action by one of the co-tenants against the other, the defendant, in order to prove the legality of the mill-owners’ meeting, may use another of the co-tenants as a witness.</p>

Exceptions from the District Court, Allen, J. A referee, appointed under the statute, chap. 138, presented his award. It was resisted, hut accepted. To that ruling, the plaintiff excepted. Accompanying the award, was a voluminous report of the evidence before the referee. The arguments of counsel were in writing, occupying on one side sixty, and on the other one hundred and twenty pages, and were devoted chiefly to a discussion of the reported evidence.

Covenant broken. The Eastern River Lock and Sluice Company was incorporated in 1816, with power to erect dams, locks and sluice ways for the passage of rafts and boats, at a stipulated rate of tolls, with all the powers usual and incident to such corporations, and with a provision for the recovery, by land owners, of such damages as they should sustain by the taking of their lands.' They erected two dams, with sluices, upon the stream near the outlet of the pond above.

<p>A certificate of the oath administered to a poor debtor by two justices of the peace and quorum, stating that the service of the citation was made upon the attorney of record of the creditors, is not invalidated by another statement therein, reciting that I. S. was one of the creditors, when in fact, I. S. was not a creditor.</p> <p>Such certificate of notice is considered conclusive, unless its effect be destroyed by an agreed statement of facts, or by a voluntary admission of testimony, which might have been excluded.</p> <p>The provisions of § 27, chap. 148, R. S. are merely directory, and a compliance with them, need not appear of record.</p> <p>The provision of § 29, chap. 148, R. S.,^requiring property disclosed to be “ set off,” is required, only when the debtor discloses more than enough to satisfy the creditor.</p> <p>The provision of § 33 of same chapter, requiring the justices to give a certificate of the real estate disclosed, applies only when there is some person present at the hearing, authorized to receive it, or application is subsequently made for it.</p>

Error, to reverse a judgment of this court, rendered at the July term, 1841, in favor of the President, Directors and Company of the Suffolk Bank, against the President, Directors and Company of the Frankfort Bank. -Plea, in nullo est erratum. The writ, in the original action, was sued out and the said judgment was recovered thereon, after the charter of the Frankfort Bank had been revoked by act of the Legislature.

Exceptions, from the District Court, Rice, J. The defendant, and one Charles Worthing, were jointly indicted for an assault and battery, and had recognized t-o appear, &c. Charles Worthing did not appear, and was defaulted on his recognizance. The defendant went to trial alone. In his defence, he offered as a witness, the wife of said Charles, and she was rejected by the court, as being incompetent.

Arrear, from a decree of the Judge of Probate, allowing the widow of the late Paoli Hewes the sum of $500, out of the personal estate. The following reasons were assigned for the appeal. 1. That the Judge has no authority by law to make the, allowance, nor is said widow by law entitled to any allowance out of the personal estate. 2.

<p>Assumpsit to recover three-eighths of certain expenditures made by the plaintiff for repair of the schooner Tamerlane of Frankfort. The plaintiff was owner of five-eighths of said schooner, and the defendant was owner of three-eighths. The action was tried before Tenney, J. It appeared that certain repairs were made upon the schooner in the latter part of Dec. 1846, and early part of January, 1847, at Frankfort; that the workmen were employed by plaintiff, and that said repairs were necessary.</p> <p>The Judge, among other things, instructed the jury that, “ with regard to the necessary repairs of a vessel, one part owner may, by ordering them on credit, render his companions liable to be sued for the price of them, unless their liability be* expressly provided against; that generally the law holds all the part owners liable for repairs, notwithstanding they were ordered by the ship’s husband, or the owner having charge of the vessel at the time, but an exception arises where the credit is given exclusively to some other person than the owners generally; that if, however, a part owner is unwilling that repairs should be made at his expense, and he causes notice of that unwillingness, to be given to the one who proposes to make the repairs, or if that unwillingness became known to the latter, he is not liable to the one causing or making them, for any expense subsequently made; that the jury would judge, from all the evidence in the case, whether or not it was proved to their satisfaction, or whether they could or not infej that the unwillingness of the defendant, (if he were unwilling,) was made known to the plaintiff, and if so at what time. If it were before repairs were made or expenses incurred therefor, the plaintiff could not recover; if after, he could recover for only such as were made prior to his knowledge of defendant’s unwillingness; that a liability, incurred for repairs, though not actually put upon the vessel, before such knowledge, would make the defendant liable in the same manner as though put upon the vessel, if they were afterwards put upon her.</p> <p>The jury found a verdict for the plaintiff, and exceptions were filed.</p>

Trespass for taking one third of a schooner. The plaintiff relied upon a mortgage to him, by Joseph P. Hardy, made and recorded March 13, 1846. The defence set up was, that the taking by the defendant, was in his office of a deputy sheriff on a writ of attachment against Hardy. The attachment was made September 22, 1846. Ill a custom house register of July 4, 1846, and in an enrollment of October 4, 1846, said Hardy and two other persons-, are named as the only owners. 1.

Exceptions, from the District Court, Rice, J. This was an action of the case, brought to the District Court, wherein the sum demanded was over twenty but did not exceed fifty dollars. The defendant filed a plea in abatement, alleging that the parties were resident, one in Belfast, and the other in Liberty, in the county of Waldo, and that the District Court had no jurisdiction of the suit, but that the jurisdiction pertained to some justice of trials for one of said towns.

Bill in equity. It was heard upon demurrer. The facts sufficiently appear in the opinion. 1. The bill is multifarious. It claims the performance of a contract to convey real estate made by one only of the respondents ; also the return of money alleged to have been obtained by one only of them, in a transaction with which the other had no connection, and the refunding of money, paid as extra interest to neither of them. Such diverse claims cannot be united in one bill.

<p>In an action of dower, the seizin of the demandant’s husband is established by proof, that he conveyed the premises by a warranty deed, and that his grantee conveyed the same by warranty deed to the tenant.</p> <p>The effect of such proof is not repelled by showing that the husband, at the time of his conveyance, had, in a writ of entry upon, his own seizin, recovered judgment against a third person for the land, but had not paid to the tenant the amount assessed by the jury for betterments, but did pay the same within the year allowed by law for that purpose.</p>

Bill in equity, to which a demurrer was filed and answers were. made. The case was heard on the demurrer, answers and proofs. The facts, so far as necessary to an understanding of the case, appear in the arguments and opinion. . This bill is dated.

Assumpsit. In security for the debt due to the plaintiffs, one Jesse Dolloff; a brother of the defendant, had mortgaged to them an undivided part of a store, standing upon land of a third person. The debt was payable on demand. In the mortgage, no time was limited for the payment. This action was commenced on the 5th of December, 1848, and the plaintiffs took possession of the store, under the mortgage, on the 19th of the same month.

Writ of entry. Plea, that tho tenant was seized in fee of an undivided half of a small lot numbered nine, of which the demanded premises are a part. Lot numbered nine was owned in common by Obed Hooper and the tenant.

The original parties had been co-partners in business. The company affairs had not been fully settled.

Assumpsit for money paid and for money had. The case came from the District Court upon a report of several legal questions. The argument, which was by is omitted, as it was devoted principally to points which the court did not find it necessary to decide.

Trespass quare clausum. The controversy was confined to the title of the land. The plaintiff, in 1845, sued a personal action against one Whitten, wherein the damage demanded did not exceed $100. The writ was directed to, and served by a constable, who thereon attached the land. In October, 1847, the plaintiff recovered judgment in that action, in the District Court. The amount was less than $100.

Assumpsit, for pauper supplies, furnished to the wife and children of Ivory Hersom. The settlement of Hersom had been in Lebanon. While his settlement was there, he became, through poverty, unable to support his family, and some of his children were taken from his custody by the overseers of the poor, and maintained at the expense of that town.

<p>Where, in assumpsit, a set-off is filed, and" evidence is introduced by the parties in support of their respective claims, and the plaintiff obtains a verdict for less than twenty dollars, he is entitled to quarter costs only, unless the jury certify, in their verdict, that the damages were so reduced, by means of the set-off claim allowed to the defendant.</p>

Exceptions from the District Court. Assumpsit. At the trial, the defendant offered a claim in set-off. An entry had been indorsed thereon, by the clerk, that it was “ received and filed before the new entries were called,” but the entry did not show on what day the set-off was filed, or on what day the new entries were called. There was also a docket entry, that the defendant had filed a demand in set-off.

Trespass q,uare clausum, for piling 300 cords of wood upon the plaintiff’s land, described in the declaration.

<p>Writ or entry. The case came up on an agreed statement of facts.</p> <p>One William Frost, at the time of his death, was seized in fee of a lot of land. After his decease, the title passed to John Powers and wife, and Abiel Hall and wife, who were seized in fee during all the proceedings had in the process of partition hereafter mentioned.</p> <p>On the south of the Frost lot, and adjoining to it, was a tract called the Province mill privilege. The demandant and many others who had become tenants in common in said tract, instituted a process for partition of the whole tract, alleging that they were tenants in common with other persons, to them unknown, and setting forth the proportions of the land which they respectively claimed. They described the tract as bounded north-westerly by land formerly owned by the late William Frost, as the land was fenced at his decease. ■ The court appointed one Goodwin as a surveyor.</p> <p>The said Powers and wife, and Hall and wife, and Theodore Willard, entered their appearance as respondents, and pleaded three several pleas, in each of which they alleged that, as to a described small lot, within the general tract, they were, as tenants in common among themselves, sole seized in fee. In each of these pleas, in describing the small lot, there was contained a reference to certain marks and lines upon Goodwin’s plan.</p> <p>Upon these pleas issue was joined.</p> <p>The jury found, as to the issue upon the first plea, that said Powers and wife, and Hall and wife, and Willard, were sole seized of the small lot therein described. The other issues were found for the petitioners. In all. the tract, except said small lot owned by Powers and wife, and Hall and wife, and Willard, the said Powers and wife and Hall and wife were tenants in common with the petitioners.</p> <p>A warrant was thereupon issued directing commissioners to assign to the petitioners their respective shares, excepting said small lot first described. The warrant described the tract as being bounded north-westerly by land formerly owned by the late William Frost. The land now sued for was assigned to Hobbs, this demandant, upon that partition, and by the plan.</p> <p>The report of the commissioners was accepted.</p> <p>Parker, the tenant, is owner of the Frost lot, under Powers and wife, and Hall and wife, to whom the same had come, as above stated, from said Frost. He claims to hold a part of the demanded land, and contends that he has the right to prove, by parol, that the fence, on the southerly side of the Frost lot, (which existed at Frbst’s death, and was the true boundary line,) had been removed northwardly before the making of Goodwin’s plan; and that a part of the land demanded belongs to him, as a part of the Frost lot, though within the parcel assigned by said commissioners to Hobbs. The plan is made a part of the case.</p> <p>The demandant claims that the proceedings izi said petition for partition and the judgment thereof, and 'said assignment to the demandant, are conclusive between these parties and that parol evidence is inadmissible, as contended for by the tenant.</p> <p>The parties agree, that if said proceedings, judgment and assignment are conclusive between the parties ; and that the parol evidence is not admissible as contended for by the tenant, then the tenant is to be defazzlted as to the land not disclaimed by the tenant; but if otherwise, then this action is to stand for trial.</p> <p>Powers and wife, and Hall and wife, have confirmed the plan by referring to it, in their pleas. Neither they, nor the tenant, who claims by a subseqzzent conveyance under them, can now object, that it included land not belonging to the Province mill privilege tract.</p> <p>If the land now claimed, had belonged to the tenant’s grantors, they should in the partition process have pleaded their sole seizin of it, as they did in relation to the three other-small pieces which they claimed.</p> <p>Those grantors were rightfully in court, through all the proceedings in that process. They pleaded to the petition and. might have resisted, and perhaps they did resist, the acceptance of the commissioners’ report. At any rate, they must be considered as having had notice of it.</p> <p>The proceedings and judgment in the partition process are conclusive. As between these parties, they fix the line between the Province mill privilege and the Frost lot, to be according to the plan.</p> <p>The warrant required a partition of “ the Province mill privilege” tract. It also described it, as bounded on the northwest “ by land formerlyoowned by the late William Frost.” Now, even if these phraseologies are to be controlled by the •words in the petition, “as the land was fenced at his decease,” still the plan must be held as the correct delineation.-</p> <p>If the “fence” is to control, the petitioners could not go beyond it, although it were some distance within the Province tract. But Frost’s heirs, in such a case, could hold nothing in the tract, unless the plan be conclusive.</p> <p>Powers and wife, and Hall and wife, would gain as much in the Province tract, as they would lose of the Frost tract.</p> <p>After permitting, throughout the trial, what is now claimed as a part of the Frost lot, to be considered and treated as part of the Province tract, they cannot in law be allowed to controvert their implied admission. If then view of the bound- • ary line be correct, they must have known it at the trial of the partition case, and ought to have disclosed it. If they had done so, they would, as tenants in common with the petitioners, have obtained less of the Province tract, and Mr. Hobbs’ share would have been assigned him correctly. 28 Maine, 127 and 525; 21 Maine, 130; 19 Maine, 412; 16 Maine, 146; 13 Maine, 131; 4 Mete.' 381; 12 Mete. 405 and 494.</p> <p>There is no estoppel to show the land was a part of the Frost lot. To constitute ait estoppel, the same point must be put in issue upon the record, and directly found by the jury. It is not established on collateral facts or inferences drawn from a verdict. 3 East, 346; 11 Pick. 311; 5 N. H. 259; 7 Pick. 147; 15 Pick. 276.</p> <p>Where the fence stood at Frost’s decease, was not a fact put in issue, in the partition process. The issue there tried, was only the fact of sole seizin.</p> <p>The plan was not taken to settle the exterior lines with third persons. The respondents in that process were not in fault that the warrant did not conform to the petition. They had no share set off to them. They could not plead sole seizin as to any part of the Frost lot, for it was not embraced in the petition. They were strangers, as relates to land extra the petition. They could not be heard to resist the report. The judgment “quod fiat partitio,” extends only to the land embraced in the petition.</p> <p>A plaintiff is estopped by his petition to claim beyond the boundaries described in it. 26 Maine, 277.</p> <p>A partition, however regularly made, binds the right of possession only. It does not establish right in the property. 2 Mass. 462 ; 16 Pick. 500; 13 Mass. 212.</p>

Case against the sheriff for misconduct of Ohase, his deputy. Trial before Wells, J. Plaintiff offered in evidence a writ, Bridges against himself, upon a note, the ad damnmn and the order to attach therein being $100; upon which writ, Chase had returned an attachment of the Schooner, Golden Rule.

Wells, J. presided at the trial of this case. It was assumpsit on a note given to one Pray, payable to him or bearer. General issue, with statute of limitations, was pleaded. Testimony was introduced by both parties on the question, whether the note was given in 1842 or 1843. It was given for the balance of an account, in which the plaintiff had charged, among other things, for spirituous liquor, sold at different times.

Assumpsit on a witnessed, note, given in 1829. The plaintiff and defendant formerly were joint-owners, with another person, of the ship Watchman. The defendant filed, in set-off, an account, the items of which were dated soon after the note was given. The balance due to the defendant on the account, purported to be greater than the amount of the note. The defendant had requested a settlement many years ago, but none had been made.

Assumpsit. The,defendant was sheriff of this county. One Morse was his deputy. Upon a writ, Reed v. Kimball Sy al., Morse attached a large cotton factory, with the materials for making cloth, &c. Among others, he employed the plaintiff as a keeper, and taxed upon the writ ¡$76 for the plaintiff’s services, which sum was allowed and included in the judgment. Morse died, and the defendant collected the execution recovered in that suit, amounting to $3161,72.

Exceptions from the District Court. Assumpsit for barrels sold. The plaintiff introduced his book of accounts, took the suppletory oath, and testified that he made the charge for the barrels at the date of the book-charge. He further testified, (against the objection of the defendant,) that the barrels were not paid for. On cross-examination, he testified that he did not deliver the barrels, but was absent from home when they were taken.

Assumpsit, upon a note of hand dated in 1839. 'The defendant relied upon a discharge in bankruptcy, obtained in the district of New Orleans in October, 1842, upon his petition filed in May of the same year, and on which he was decreed a bankrupt prior to Sept. 1842.

Bill for an injunction and for relief. The bill, in substance, alleges that the plaintiff is owner and occupant of improved and valuable lands, upon which he resides ; that defendants were incorporated with power to construct a rail road, and to purchase or to take, hold and use lands necessary for said purpose; provided, that when lands should be taken without purchase or contract, the company should pay damages, to be ascertained and determined by the county commissioners,…

Assumpsit. Money had been received by the defendants for timber cut, (stumpage,) on a township of wild land. The plaintiff claims title to T5F of the township, and brings this suit to recover that proportion of the stumpage money. The only question related to the title, it being agreed that the plaintiff is to recover, if the title be in him.

<p>"Where lands are held in common, one of the co-tenants may, by action of trespass, recover against another, treble damages for strip and waste committed by him, during the pendency of a petition for partition, even though the defendant himself be the petitioner.</p> <p>In such an action, if the whole of an averment might be stricken out, and yet leave sufficient allegations upon which to support an action, such averment need not be proved.</p> <p>In such a suit, the declaration need not name the other co-tenants. It is in suits against strangers to the common property, that the names are required to be stated, if known.</p>

Assumpsit, brought by the plaintiffs, creditors of a corporation, against a stockholder, under the provisions of R. S. chap. 76, sect. 18, 19 and 20. The case was submitted upon facts agreed. The plaintiffs had recovered judgment against the corporation for $7351,57.

Assumpsit, for money paid. Green, one of the defendants, was defaulted. Swett, the other defendant, filed a brief statement of discharge in bankruptcy. The plaintiff, to impeach the discharge, filed specifications of fraud and wilful concealment by the bankrupt, of his property and rights of property, and of unlawful preference of creditors.

<p>If a child, having no father or mother, the guardian is entitled to the custody, as against a relative, to whom its father, a few days before his death, and in view of that event, had made a verbal gift of the child, “ to take care of, have and keep, as his own child.” The mother-in-law, however competent, is not entitled to the custody, as against the guardian.</p>

<p>Covenant broken.</p> <p>, The facts are sufficiently stated in the opinion of the court. The case was submitted for nonsuit or default.</p> <p>urged the following positions.</p> <p>1. Where one party to an executory contract puts an end to it by refusing to fulfil, the other party is entitled to an equivalent in damages for the gains he would have realized from the performance. Masterton v. Mayor, Spc. of Brooklyn, 7 Hill, 61.</p> <p>2. By the resumption of the work, the original contract, which had been merely suspended, was revived.</p> <p>3. By necessary construction, the defendants were bound to that contract.</p> <p>The contract was not mutual and was not intended to be. It left, and was intended to leave, the election with the defendants whether again to employ the plaintiffs.</p> <p>The road., after the plaintiffs retired from the work, was located upon a different bed. The plaintiffs were not bound to build it there. It was 'therefore necessary to employ others to do it.</p> <p>Upon the road, as contemplated in the contract, there has been no resumption of the work by the defendants.</p> <p>The plaintiffs therefore are entitled to the $750, as stipulated, though not in this action.</p>

Assumpsit, by the indorsee upon a negotiable note. The case was submitted upon a statement of facts. The note was given without consideration, as an accommodation note, on the statement of the payee simply, that he wished to have the note to use. The note was given and dated the 29th of May, 1849, payable in thirty days.

Exceptions from the District Court, Cole, J. Process of forcible entry and detainer, commenced on the 28th July, 1848. It was proved that the land belonged to the plaintiff, that the defendant was occupying it under a parole lease, at a rent of $60, payable $15, quarter yearly; that rent was paid up to 20th July, 1847; and that notice in writing to quit was served on the defendant, June 19, 1848. Upon this evidence the Judge ordered a nonsuit.

<p>The charter of the Kennebec and Portland Rail Road Company provides a remedy, for the land owner, to recover damage for the location and construction of the track across his land.</p> <p>The remedy, thus provided, is in exclusion of the remedy at common law. In the estimate of that damage, is to be included the injury which may be done to the owner, by the erection of an embankment upon the site of the road, whereby the communication is destroyed between the parts of the land which lie upon the opposite sides of the track.</p> <p>An action to recover damage for destroying such communication, either by taking- the strip of the land for the site of the road, or by the erection thereon of such an embankment, proceeds, not upon the ground that the land for the road w-as illegally taken, but upon the ground that the power, granted by the charter, had been transcended or abused. It therefore presents no basis for a decision as to the constitutionality of that power.</p>

<p>Assumpsit, upon a policy, whereby the defendants insured to the plaintiff, on the 30th day of June, 1848, $1500, for three months, upon a double house, which he ivas erecting in Portland, and upon the materials for finishing it ; at a premium of ten per cent, a year, till the building should be completed, and after that at the “ average rate.”</p> <p>The Act by which the defendants were incorporated, contained the following among other provisions: — “ All persons who may at any time become insured under this Act, and also their legal representatives, continuing to be insured therein, as is hereafter provided, shall be deemed and taken to be members of this corporation, for and during the time specified, in their respective policies, and no longer, and shall at all times be concluded and bound by the provisions thereof.</p> <p>“ The directors shall determine the rates of insurance, the amount to be insured on any proposed risk, not exceeding two-thirds of the value of the property insured, and the premium and sum to be deposited therefor.</p> <p>“ If any other insurances shall be obtained, on any property insured by this company, notice shall be given to the secretary, and the consent of the directors obtained; otherwise, the policy issued by this company shall be void.”</p> <p>In the policy, the defendants promised, “ according to the provisions of said Act,” to pay the plaintiff, in case of loss, &c.</p> <p>The policy referred to the plaintiff’s application, “ for a more particular dscription, and as forming a part of the policy.”</p> <p>The application was contained upon a printed form, prepared by the company, and presenting certain specific inquiries relative to the property.</p> <p>To the fifth interrogatory, which was, “ the number of stoves, and how secured?” the plaintiff’s answer was, “none.”</p> <p>On the 27th of August, 1848, the defendants, upon the plaintiff’s application, enlarged the amount of the policy to $2000, and extended its term to 27th August, 1849.</p> <p>In the fall of the year a stove was used, for a few days, in one of the rooms, for drying the paint.</p> <p>On the 30th November, 1848, the plaintiff, in writing, represented to the defendants, that he had finished the building, and requested permission to obtain additional insurance of $400 at the Columbian office. They assented in writing, and he accordingly procured the insurance of the $400. There was testimony upon the question whether, in point of fact, the building was then entirely finished.</p> <p>In his first application he represented the value of the property to be $2100. In the third, he stated that, “ having finished the building, he had increased the value of the property, some $1200.” To certain specific inquiries, the jury replied that at the time of the first application, the property was worth $2100; at the time of the second, $2800; and at the time of the third, $3340.</p> <p>The house took fire in December, 1848, or January, 1849, and this action is brought to recover for the loss occasioned thereby.</p> <p>The examination, made after the injury, showed that the fire originated in the cellar, and that in the cellar, there were found shavings, chips, and fragments of boards.</p> <p>The trial was before Howard, J. — He instructed the jury that, if the permission to insure at the Columbian office was obtained by a false representation on the part of the plaintiff, and was material, the policy was thereby vacated ; and that it might be material by enabling him to obtain an over insurance, tending to make him less careful to preserve the property; also, that an over valuation, if fraudulently made, would avoid the policy ; but if made through a mere error of judgment, it would not have that effect; also, that the use of the stove would not defeat the action, unless the risk to the property was thereby increased ; also, that the application of 30th Nov. was, in law, a warranty that the building was then finished, and if that warranty was false, it would vacate the policy; “that it was to be borne in mind, that the rate of premium was to be reduced as soon ás the building was finished ; and that if, in order to induce the defendants to reduce the premium, the plaintiff made' any untrue representation, it would avoid the policy.</p> <p>The verdict was for the plaintiff, and the damage was assessed at $896. It was agreed that the court should render judgment on the verdict, or direct a new trial, as legal principles should require.</p> <p>The answers to the interrogatories, in the plaintiff’s applications for insurance, are warranties. They are referred to in the policy, and expressly made a part of it. There is, then, a warranty that no stove was in the building. This warranty is co-extensive with the life of the policy. It is, by construction, as settled in a multitude of cases, a warranty that no stove should, at airy time during the policy, be placed in the building. This warranty was broken, and the policy thereby became void; whether the use of the stove did or did not increase the risk.</p> <p>But, suppose the policy to be in force, if the risk was not increased; the burden would then be on the plaintiff to show that the risk rvas not increased. Yet there was no particle of testimony on that point. Clark v. Manf. Ins. Co. 2 Minot &, Woodbury, 472.</p> <p>2. The statement in the plaintiff’s application or notice of 30th Nov. that the house was finished, was a warranty of this fact. But in truth the house was not finished. Of necessity, this was a material point. For it was to affect the rates of the premium. The motive of .the warranty was not in question. The instruction was erroneous, that if the warranty was false, and was made for the purpose of inducing defendants to reduce the rate of premium, it would avoid the policy. This wrongfully left the jury to infer, that if the warranty was made without that purpose, it would not vitiate the policy. DeLonguemare v. Traders' Ins. Co. 2 Hall, 589; Fowler v. Etna Fire Ins. Co. 6 Cowen, 673; Marshall on Insurance, 248 — 252 ; Clark al. v. The Manf. Ins. Co. cited before; Routledge v. Burrell, 1 Henry Blackstone, 254; Oldman v. Renick, 2 Henry Blackstone. 577; Bean v. Stupart, Douglass, 11; Burritt v. Saratoga Co. Mutual Fire Ins. Co. S Hill, 188.</p> <p>It is not pretended that the building was finished. The verdict ought therefore to be set aside.</p> <p>Again, the charter requires such notice to be given to the secretary. The notice given by the plaintiff was not directed to the secretary, but to the company.</p> <p>3. There was an over valuation in the amount of the property insured, which vacated the policy. A breach of warranty, as to the value of the property thus insured, defeats the policy. Act of Incorporation, Dec. 20, 1844; DeLonguemare v. Traders' Ins. Co. 2 Hall, 589 ; Burritt v. Saratoga Co. Mutual Ins. Co. 5 Hill, 193; 2 Duer on Ins. 646, <§> 3.</p> <p>The plaintiff was a member of the company.</p> <p>The charter prohibits any one from insuring to an amount exceeding two-thirds the value.</p> <p>By the finding of the jury, the plaintiff insured $1500 upon a property of the value of $2100 only ; the second insurance brought up the sum insured to $2000 upon a property of $2800 only ; the third insurance brought it up to $2400 upon a property of only $3340.</p> <p>When he took the second insurance, he did not state the value of the property. lie must be considered as warranting that the $2000, then insured, was not more than two-thirds the value of the property. This has been found by the jury to be untrue.</p> <p>4. The accumulation of chips and shavings in the cellar was sirch gross carelessness, as, of itself, defeats the policy. On this ground also, the verdict should be set aside.</p>

Assumpsit. The plaintiff’s horse was transported upon the defendants’ rail way from Boston to Portland, for which the plaintiff paid freight, $2,75. It was upon a cold day in November, 1848. The horse was carried in an open car, and suffered serious injury from the exposure to the cold. This action is brought to recover for that injury.

Exceptions, taken by the defendant. Assumpsit by a minor, to recover for several years labor, rendered by him whilst between eight and seventeen years of age.

Dower. The marriage of the plaintiff and a demand by her of tbe dower were admitted. Whether the husband had such a seizin, as to entitle the plaintiff to dower, was the point in controversy. She introduced a deed of the land from John Reed to her husband. The defendant offered to prove, and it is agreed that, if the evidence be admissible, he can prove the following facts.

<p>A contract in violation of a statute, when introduced as evidence of a right to recover thereon, may be effectually resisted by a party to it, or by one in legal privity, but not by a mere stranger.</p> <p>"Where a mortgage is made to secure a claim, rendered void by the statute, and a subsequent mortgage of the same property is made to another person, to secure a lawful debt, the receiving of the money by the first mortgagee, for his claim, by a sale or a discharge of his mortgage, will not subject him to an action by the subsequent mortgagee to recover such money.</p>

<p>Case for diverting water from the plaintiff’s mill on Roy-all’s river. Both parties claim under one Powell, who formerly owned all the rights now in controversy. In 1779, he erected a mill on the falls, with a dam in contact with it, across the river, creating a water power which has ever since been in use.</p> <p>In 1781, he built a dam across the river, about 10 rods above the former one. By this upper dam he conducted a part of the water from the river through a channel, cut around the falls; this channel was called the Forge stream, and upon it he erected works for the manufacture of iron.</p> <p>In 1787, he conveyed, to those under whom the plaintiff derives title, the first named mill with the privileges appurtenant, reserving to himself, his heirs and assigns, the right to divert sufficient water through said Forge stream for the use of his iron works, or for any other mill requiring an equal amount of water power. The defendant has the rights which Powell retained under said reservation. In 1800, the dam by which the Forge stream was supplied with water, was carried away, and the stream was thenceforth entirely obstructed, and the iron works abandoned. That state of things continued till 1845, when the defendant re-opened the stream, and erected a dam of the same dimensions, and in the same place, of that 'which was carried away in 1800. By this dam much of the water was diverted from the plaintiff’s mill, and this, action is brought for that cause.</p> <p>It was agreed that the defendant has the right to divert the water as he has done, unless debarred by the length of time for which the plaintiff and his grantors have had quiet enjoyment, (under their said title,) of all the water power, obtained from the running of the river in its natural channel at the site of their mill, undiminished by the exercise of any of the rights reserved in their deed from Powell, from the year 1800 to the year 1845.</p> <p>The case was submitted for decision, by</p>

Debt on a guardianship bond, given by Irish, in 1833, as guardian to Harriet M. Mason, a minor. The defendants pleaded performance. The ward became twenty-one years of age, on the 7th of June, 1838. The first and only guardianship account was made up as of said 7th June, 1838.

Trespass quarts. The plaintiff introduced a deed to himself of the locus in quo, dated April 19th, 1847, and proved that his grantor had been in possession of the land by fences, fourteen years previously ; and that the defendants, in June, 1848, removed the plaintiff’s fence and opened a road upon the locus in quo. It was admitted that the plaintiff’s grantor is the plaintiff in interest in this suit.

<p>Petition for mandamus. The respondent was treasurer of the town of Brunswick.</p> <p>Some proceedings were had by the inhabitants of that town, in April, 1848, with a view to the consolidation of three of its school districts into one, to be called the village district. These proceedings are sufficiently stated in the decision of the case by the court. In August, 1848, an Act of the Legislature authorized the inhabitants of the village district to raise, for the support of schools, a sum not exceeding, in any one year, three-fifths of the amount, apportioned to said district from the school money raised by the town for the same year, to be assessed and collected in the manner provided for the assessment and collection of school district taxes.</p> <p>The petitioners allege ¡that, at a legal meeting in April, 1849, the district voted to raise, by a tax, $702,56, being three-fifths of the amount apportioned to the district, out of the money raised that year by the town, for supporting . schools ; that, pursuant to the public Act of August 6, 1846, the district had borrowed $325, for repairing the school houses belonging to said district, which last mentioned sum, the respondent, as treasurer of the town, had received and duly paid out for said repairs ; that the assessors of the town duly assessed said sums, (amounting with the interest on said loan, and with the authorized overlayings, to $1093,48,) upon the polls and estates within said district, according to law ; and committed to Stephen Snow, the collector of taxes of said town, lists of said assessment, with warrant to levy and collect the same, and pay the amount thereof to said Titcomb, on or before the first day of December, 1849 ; and also certified to said Tit-comb, the assessment and commitment aforesaid; that said Snow, after collecting a part of the sums so committed to him, (out of which the money borrowed as aforesaid, has been fully paid,) has neglected to complete the collection, leaving not less than ¡$6Ú0, yet uncollected; that, in execution of the contracts entered into by the district, for the support of schools, the officers of the district have drawn their order upon the selectmen of the town, in favor of a person having a just claim against the district, which order the selectmen have declined to pay or accept, for the reason, alleged by them, that the district has already received its full proportion of the school money, raised by the town, and that the amount raised by the extra taxation in the district, has not been collected, and, therefore, is not subject to the order of said district; that an order of the- like tenor, and for the same purpose, has been drawn upon the said Titcomb, treasurer, which he has declined to pay, for the reason, alleged by him, that there are no funds in his hands, subject to such order ; that said petitioners have frequently requested said Titcomb to issue his warrant of distress against the said Snow, collector as aforesaid; which he has wholly refused to do ; that, by means of said refusals, the inhabitants of said district are aggrieved and deprived of their just rights : —■</p> <p>Wherefore, they pray that a Rule be issued to said Titcomb, to appear at, &c., to show cause, if any he have, why a writ of mandamus should jiot be issued by this court, commanding him to issue such warrant of distress.</p> <p>This petition was entered at the term of the court held for the county of Oxford, where it was ordered, that a rule be issued to said Titcomb, to show cause, &c. at the term of the court then next to be held for the county of Somerset, when and where it was agreed, that the cause should be postponed and stand for argument at the term of the court, then next to be held for the county of Waldo, and that the respondent shall then and there make such a written return in answer to this petition, as he would by law be required to make to an alternative writ of mandamus, and that, upon such return, or upon the default of the respondent to make such return, and upon the proofs adduced by the parties, if the opinion of the court shall be in favor of granting the prayer of the petition, a peremptory writ of mandamus shall then issue.</p> <p>And at said term for the county of Waldo, the said Titcomb filed his answer.</p> <p>That answer contained an extended and well drawn argument upon the law, applicable to the facts which it alleged. The facts will sufficiently appear in the opinion given by the court.</p> <p>The grounds assumed by the respondent were, in substance:</p> <p>I. The so called village school district never had a legal existence.</p> <p>1. It was not created according to the constitution or the laws of the State. By article 8, of the constitution, the mode in which the Legislature may proceed to enforce the maintenance of public schools is exactly prescribed. It is only by acting through the towns. The Legislature has no authority to create, directly, a school district, with power to raise money.</p> <p>2. The vote of the town to consolidate the three districts into one, “ if such should be thdr wish,” was a delegation of authority, such as it was not lawful for the town to make.</p> <p>3. But if lawful, the districts never complied with the condition. They never expressed such a wish. The utmost that can be claimed from their respective votes, is that they concurred in a measure for uniting the more advanced scholars of each district into one school, under the statute of 1847, c. 25.</p> <p>4. If the town had intended to merge the three districts Into one, the law authorized it to be done only at some annual meeting in March or April.</p> <p>5. The Act of the Legislature of August 3, 1848, did not pretend to form a new district, but was merely confirmatory of the- votes passed by the districts. It was therefore inoperative, inasmuch as the districts had not all voted for the formation of the new district.</p> <p>6. It cannot have been the intention of the Legislature, by that act alone, to establish the Union district; for, if so, the town could have no authority to change its limits ; a right which the law expressly gives to towns over their districts.</p> <p>II. But, if the village school district had a legal existence, the tax was not legally assessed.</p> <p>1. The Legislature had no authority, under the constitution, to compel individuals to become subject to taxation under any vote of such a corporation.</p> <p>2. The assessors of the town had no official notice, from the districts, of their having complied with the condition of the town vote, whereby their consolidation was effected. In fact such compliance was never had.</p> <p>3. The money assessed, was never raised by a legal vote of the district. For, heyond the amount voted, the assessors included §325, to repay money which the district had borrowed ; and that money was borrowed for purposes not authorized by the statute of August 8, 1846, under which it. purported to have been obtained, and upon different times of pay-day from those prescribed by that statute.</p> <p>4. No certificate of the district vote, authorizing the borrowing of money, was ever furnished by the district clerk to the assessors or treasurer of the town; nor had any certificate been furnished them by the district agents, that money had been rightfully borrowed.</p> <p>III. If it be constitutional for the Legislature to authorize school districts to raise money, the power cannot be given to a single district, by special legislation. It can be done only by a general law operating upon all the school districts in the State.</p> <p>IY. In a state of facts, like those presented in this case, it is not the school district, even though legally constituted, but it is the town, which has authority to apply for a writ of mandarmis, to act, not upon any officers of the district, but upon those of the town.</p> <p>The facts, disconnected with the arguments, presented in the respondent’s answer, are admitted to contain the truth of the case.</p> <p>The constitution of this State, article eight, recognizes that a general diffusion of the advantages of education is essential to the preservation of the rights and liberties of the people. To promote this important object, “ the Legislature are authorized, and it shall be their duty to require the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools.”</p> <p>This is the whole extent of the power of the Legislature, in regard to the establishment, support and maintenance of public schools.</p> <p>It is therefore very clear that these public schools must be provided for, and maintained by the several towns, and at their expense.</p> <p>It is in their corporate capacity only, that they can be compelled to perform this duty. And this duty can only be enforced by laws, acting under the sanction of penalties, and equally applicable to all the towns in the State ; and on the towns only.</p> <p>A law, to be constitutional, operating on a town, must operate oil the whole town, and in its corporate capacity. The - inhabitants of any territory in the State are not a town, unless incorporated as such. It is essential to a town, that the inhabitants be incorporated as such.</p> <p>The Legislature has no power to compel any particular portion of the inhabitants of a town, either by name, by number, by geographical, or local position, or by pecuniary ability, to support and maintain public schools.</p> <p>They cannot legislate to compel school districts, as such, to support and maintain public schools. What are school districts but geographical portions of the several towns, with the inhabitants residing thereon? Definite portions of towns ; not towns. They may be corporations; but they are not towns. And it is towns, and towns only, who may he made to feel that stringent legislation, which would coerce them to support and maintain public schools. School District No. 3, Sanford v. Brooks, 23 Maine, 545; Revised Statutes, chap. 17, sect. 2.</p> <p>This village district, if it have a corporate existence, is a private corporation. A corporation created exclusively for the benefit of those inhabiting a small portion of the territory of Brunswick. It has none of the characteristics of a public corporation, established to promote literature. It is not an academy or college, to which all the citizens have a right of access. It is not an institution open to all the inhabitants of Brunswick even. One residing out of the limits of the village district, could have no access to the benefits of the school, should he hire his board in the district. It is a private school, existing by act of the Legislature only, if at all.</p> <p>The Legislature cannot compel a man to become a member of such a corporation, against his will. 4 Wheaton, 518, Dartmouth College v. Woodward, see pages 707 and 708.</p> <p>= There are, by the constitution, but two modes by which the Legislature is authorized to make provision for the diffusion of the advantages of education, without the consent, or direct assent of the citizens of the State. One of the modes. is by endowing colleges, &c.; the other is by compelling towns to make provision.</p> <p>It is then in the power of the Legislature to malee suitable provision for the support and maintenance of public schools, only through the action of the several towns. Not by laying a tax directly on the towns, or portions of the inhabitants of towns, but by law applicable to all towns, compelling the towns to make suitable provision, at their own expense, for the support and maintenance of public schools.</p> <p>The power granted to towns to determine the number and limits of the school districts within them, and the duty required of them so to do, is a power and a duty which cannot be delegated or exercised upon any conditions ; 12 Mass. 206, 214. The vote of the town of Brunswick, which consolidated the three districts conditionally, was therefore void. 3 N. H. 168 ; 3 Story, 411. Even if such a conditional vote could be valid, the condition has never been performed, for the districts have never given their consent in any legal form.</p> <p>The inhabitants of the several towns, cannot assign the power which is vested in the whole town, that of raising and expending money for the support of schools therein, to the inhabitants of the various school districts. The evils of such a system would be too glaring, and the absurdity loo manifest. It would destroy at once that equalizing of taxation upon the people, and that equality of burdens, as well as privileges, which is a primary object of the constitution. It is partial legislation. And no good reason can be assigned, why the power might not be given to any small portion of the inhabitants to tax the residue, as to give to the inhabitants of a majority of a fraction power to tax the rest of the people.</p> <p>But the great objection is, that it makes school districts entirely independent of towns, overlooking the eighth article of the constitution altogether. If the Legislature could, without the intervention of towns, anthorize one school district to raise any sum of money for the support and maintenance of schools, and impose the duty so to do, the Legislature might give the same powers to, and require the same duties of, all the school districts; and the action of the several towns be superseded.</p> <p>The Legislature, then, not having the power to authorize the district to raise money for the support of a public school, the act of the school district in voting the money for such object was merely void, the assessment was also void. He who should enforce the collection of it would be a trespasser.</p> <p>Such a tax no collector can be bound to collect. And above all, the court, in its wide discretion, would never coerce a treasurer to enforce the collection of a tax, thus unconstitutionally raised and unconstitutionally assessed. Can such an officer rightfully be compelled, without indemnity, to expose himself to trespass suits by every person who should, by the mandamus asked for, be made to pay an illegal tax ? We believe not.</p>

Assumpsit, by the sheriff, upon a written contract to pay $500, or re-deliver certain liquors, specified in the contract to be of that value, which the plaintiff had attached on a precept against a third person. Judgment and execution having been obtained by the attaching creditor, the plaintiff seasonably demanded the property.

Exceptions from the decision of the District Court, in a case, which had been submitted to referees, and in which they had made an award. The exceptions did not show that the award had been finally acted upon in the District Court, either by an acceptance or a rejection of it. This court declined to hear evidence on that point, and dismissed the exceptions for want of jurisdiction. Butler then moved for costs against the excepting party, and cited 8 Mete. 343.

Nathaniel Blake died in 1845, leaving eight children and heirs, of whom John Blake was one. The appellant was administrator. In 1846, the administrator was directed by the Probate Court, to pay to said heirs their respective proportions of the estate, each share being $2024,06. John Blake left the State in 1839, having never been married. He was last heard from in 1840, being then in Tennessee.

<p>Where, in a suit upon a contract relative to certain corporation stock, the contract, offered by the plaintiff in evidence, disagreed with the declaration as to the plaintiff’s Christian name, and also as to the name of the corporation ; hut the identities were apparent from the recital in the contract, and from the corporation records, to which the contract referred; B'eld, the variances, (between the contract and the allegations of the writ,) constituted no defence.</p> <p>A transfer of corporation stock, made to fulfil a contract, is not ineffectual on account of its being made two days earlier than the stipulated day.</p>

Trespass q,uare clausum, commenced in the Municipal Court. In the District Court, Cole, J., a motion was made, that the writ be abated, because the statute form was not pursued, inasmuch as the words, and for ivant thereof to take the body of the said” Berry “ and him safely keep so that he may be had,” were omitted. The motion was overruled. The general issue was then pleaded.

Replevin. Plea, non cepit, with brief statement that the property was in one Carter, and that defendant, being an officer, had attached it as Carter’s property; and that the property was not in the plaintiff. The trial was before Howard, J. Carter had owned the property, and had made a conveyance of it to the plaintiff. The defendant contended that that conveyance was fraudulent and void as against creditors.

<p>In a suit against a town for damage tiirougb a defect in the road, the plaintiff, with a view to account for the violence of his horse, may show that near the defect where the injury occurred, there was, in the road, another defect, which he had just passed, though without injury.</p> <p>If a traveler's horse should, without the fault of the town, be running violently upon the road, it cannot be ruled, as matter of law, that the town is not responsible for an injury, sustained by the traveler, through a defect in the road, though it might not have occurred but for the furious running of the horse.</p> <p>In such an action, bodily pain is a part of the injury for which damage may be recovered.</p>

' Writ of Entry. Plea, that the defendants cannot render to the plaintiff the demanded premises, because they are not, and at the time of suing out the writ were not, nor at any time since have been, tenants of the freehold.

Exceptions from the District Court. Slander. The general issue was pleaded. The defendants offered testimony tending to prove, that the female plaintiff had been lawfully married to a former husband, who was living at the time of her second marriage. To the admission of such evidence, the plaintiffs objected, but it was received.

Writ oe entry. The trial was before Shepley, C. J. The demanded premises were about one acre of land and flats. Among the deeds relied on by the tenants, was a mortgage from one Coombs to Nathan Hunt, and a quitclaim from Mary Hunt, as administratrix of said Nathan, made in 1811. -The other evidence, both documentary and oral, so far as necessary to be presented, will be found in the opinion of the court.

<p>Debt, on a judgment recovered before an Associate Justice •of the Supreme Court of the State of Illinois, presiding and Folding courts in the second judicial district for the county of Fayette.</p> <p>By the record of that judgment, it appeared that the claim sued was for labor done in Illinois ; that one William H. Lee was summoned as garnishee of said Beedy: that notices of said suit were published in the public newspapers, according to the requirements of the laws of Illinois; that bond was duly given for the payment of such costs as Beedy might recover ; that the said Beedy did not appear, but made default; and that the jury assessed the damages at the sum of $143,00, for which sum, together with cost, $15,43f, judgment was rendered ; and that the garnishee disclosed in his hands, $67,92, the property of Beedy, and paid the same into court, to be allowed in part payment of said judgment.</p> <p>The defendant here pleaded, that he was not an inhabitant of the State of Illinois, nor resident therein, at the time of the suing out of the original process, nor in any way amenable to said court of Illinois ; that he was never served with such process, and had no notice of the same, and was wholly ignorant thereof, and did not by himself or attorney, appear to such process ; but that he was, at the suing out of said process, an inhabitant of the State of Maine, residing in the town of Weld.</p> <p>To this plea, the plaintilf demurs, and the defendant joins in demurrer.</p> <p>The plaintilf also asked leave to amend.</p> <p>11 Full faith and credit shall be given in each State, to the public acts, records and judicial decisions of every other State.” Constitution of United States, article 4, sect. 1.</p> <p>It is not competent for this court to look into the anterior proceedings, to see by what means the court of Illinois came to their result. 7 Cranch, 481; 3 Wheat. 234; Breese, 128. The question of jurisdiction in that court is not open.</p> <p>But, if that question be open, the case exhibits enough to establish the jurisdiction.</p> <p>1. The judgment was recovered upon a contract made in Illinois, by persons then resident there.</p> <p>2. Property of Beedy, in hands of a garnishee, was attached and held in said process, and notices of the suit were duly published.</p> <p>3^. Nothing is pleaded here, to show a want of jurisdiction, but what was apparent to the court of Illinois. The matter of jurisdiction is therefore res adjudicata.</p> <p>4. Courts of a sister State should be presumed to have jurisdiction, when they attempt to exercise it, and the exercise of it is prima facie evidence of jurisdiction. Shumivay . v. Stillman, 4 Conn. 292.</p> <p>5. If the jurisdiction does not sufficiently appear, to make the judgment binding upon the defendant, as a domestic judgment, courtesy will at least put it on the footing of a foreign judgment, so that it shall be taken as prima facie evidence of indebtedness. 1 Ham. 259.</p>

Assumpsit. At the death of the defendant’s husband, one of her daughters, being one of the heirs of the deceased, requested a third, person to obtain from the plaintiff some mourning apparel for the defendant and her children; provided he would furnish them as a charge upon the estate of the deceased; which he accordingly did. The defendant objected to purchasing the articles, because of her inability to pay.

Slander. The trial was before Shepley, C. J. The plaintiff alleges, that he is a trader of integrity and of good reputation; that the defendant, maliciously intending, &c., in the presence and hearing of many good citizens, falsely and maliciously uttered the following false and scandalous words, of and concerning the plaintiff j viz : — “ It would make no difference whether the government, (meaning the government of the United States of America,) got the goods, (meaning the…

Assumpsit on a valued policy of insurance on the plaintiff’s schooner. She met a disaster near Yera Cruz, on the 26th March, 1847. A survey was called, and the vessel was condemned and sold, on the 5th of April. An offer to abandon was made on the 22d of April. The question was, whether the plaintiff is entitled to recover for a constructive total loss or only for a partial loss. The follojwing instructions were requested but not given. 1.

<p>Trover, against the collector of the port of Wiscasset, to recover for the enrollment and license of the schr. Palo Alto. The writ and pleadings may be referred to.</p> <p>The plaintiff, on July 15, 1847, was the owner of the vessel, and of the cargo then on board; sbe was enrolled and licensed for the fishery; and was, on that day, seized by the collector of the district of Wiscasset, to whom her papers were surrendered ; she was subsequently libeled, as forfeited ; the forfeiture was confessed by the plaintiff; he petitioned the secretary of the treasury of the United States, to have the forfeiture remitted : a remittitur of the forfeiture was forwarded to the district attorney, and was filed in court; the secretary attempted to recall the same ; but bis right to do so was resisted, arid a decision was made in the District Court of the United States, that the remission of the forfeiture was effectual, and could uot be recalled ; an appeal was claimed in behalf of the United States, to the Circuit Court of the United States, and the judgment of the District Court was affirmed. While these proceedings were pending, a petition having been filed by the plaintiff, to have the property delivered to him, upon giving bond for its appfaised value, it was ordered to be so delivered; and, on December 18, 1847, a precept issued from that court, directing the marshal to cause the property to be delivered to the plaintiff. On December 22, 1847, a deputy marshal made his return thereof, that he had caused the goods to be delivered to the plaintiff.</p> <p>Testimony was introduced by each party tending to prove what was done and said on that occasion. There was some difference in the testimony, but the Aveight of the testimony clearly proved the following facts: — The plaintiff desired the deputy to deliver the property to an agent of C. C. Mitchell & Son, of Portland, and he Avas informed by the deputy, that he could not do so, as his precept directed him to deliver it to the plaintiff; the collector delivered the property to the deputy, Avho immediately delivered it to the plaintiff, Avho immediately delivered it to William Beals, an agent of Mitchell & Son, in the presence of the collector. The plaintiff and Beals both declared that the property was the property of Mitchell. They then went to the office of the collector, and there the plaintiff demanded of the collector the papers of the vessel, stating that the vessel would be of no use without her papers ; and he Avas informed by the collector, that, if the vessel Avas his, he could have the papers; but if, as he had stated, the vessel was Mitchell’s, he could not have them ; but a temporary register Avould be granted, if desired. A copy of the enrollment was given to the plaintiff.</p> <p>On December 25, 184$, the plaintiff and Beals went to the collector’s office, with an order dated 24th December, and signed C. 0. Mitchell & Son, claiming the vessel as mortgagees, and directing the papers to be delivered to the plaintiff, who presented the order to the collector, and again demanded the papers, and they were refused ; the collector making the same remarks, Avhich he had made at the time of the previous demand.</p> <p>The property had been mortgaged by the plaintiff to C. C. Mitchell <fc Son, on July 24, 1847. The mortgage was recorded on July 26, 1847, and was lodged in the custom house on October 18, 1847, where it remained during the time when the transaction before named occurred.</p> <p>The vessel had remained unused for want of papers, as the plaintiff alleged:</p> <p>The ease was submitted to the decision of the court.</p> <p>Barnes was the owner as to all the world, except the Mitch-ells. Whatever lien they had, could be enforced only by themselves. The defendant had no right to the papers. It is not for him to object that they were under mortgage. He was ordered by the secretary of the treasury to restore them to Barnes. They belonged to him, as part of the tackle and furniture. He had never lost the general property. The order of the secretary gave him the right of immediate possession. The action of trover, then, well lies.</p> <p>The counsel then discussed the rule, admeasuring the damages, in cases of trover. As the decision turned upon another point, the argument is omitted.</p>

Assumpsit, brought before W. H. Lunt, a justice of the peace, who, on the appearance of the parties at the return day of the writ, adjourned the action to October 20, 1848 ; and who, on that day, was unable to attend. Caleb Sampson, another justice of the peace, attended on said 20th October, and further adjourned the action to November 11, and noted the continuance on the docket.

Assumpsit for money had and received to the use of Went-worth Allen, the plaintiff's intestate. Wentworth Allen was a shipmaster. He returned from Mexico with health somewhat impaired. He, however, performed several coasting voyages afterwards. On starting upon one of these voyages, he placed in the defendant’s hands $950, to be deposited in the savings bank.

<p>In a sale of chattels for ready pay, the seller may waive the condition of ready pay, and, by delivery to the purchaser, part with the property.</p> <p>After such a waiver and delivery, the seller, in replevin for the goods, cannot avail himself of a fraud between the purchaser and the vendee of the purchaser.</p>

Trespass. One Healy had sued Dodge in the District Court upon a note, on which was then due about $21. Greeley had charge of the note, as agent for Healy. After the commencement of that suit, and before the entry of the action in court, Dodge paid Greeley $5, which Greeley indorsed on the note. Soon afterwards, Greeley erased the indorsement, and offered to repay the $5 to Dodge. Healy recovered over twenty dollars with full costs.

This was a writ of entry. Eight or ten years before the suit, the defendant had erected a fence, which enclosed, (with his own land,) a narrow strip of the demandant’s land.

Covenant broken. The trial was before Shepley, C. J. The defendant conveyed by deed to the plaintiffs, a lot of land in East Thomaston, on which stood a building principally finished, intended for a dwellinghouse, and described in the deed as “ a dwellinghouse.” He took back a mortgage to secure a part of the purchase money.

Debt upon a poor debtor’s bond, given to obtain his release from arrest on execution. Among other fees, the officer charged §1,00 for travel from Augusta, without stating the distance : also §3,20 for dollarage, although he collected no part of the execution, except by taking the bond in suit. Those items made a part of the amount, which being doubled, constituted the penal sum of the bond. A default was entered, subject to the opinion of the court. Gilbert, for defendants.

Exceptions from the District Court, Rice, J. Assumpsit on a receipt for a vessel’s wheel, which the plaintiff, as an officer, had attached on a justice’s writ, sued upon an account annexed, wherein judgment had been recovered in the county of Lincoln, against the original defendant. The defences necessary to be here mentioned were the following : — First. There was no legal service of the writ in the original suit, in which the wheel was attached.

Assumpsit for money had and received. The evidence tended to show the following facts. Moses Call had a note against Knowlton, as principal, and the present plaintiff, as surety. The note was sued, and the writ was placed in the hands of this defendant, then a deputy sheriff. Knowlton had made a contract with his said surety to assume and to pay the debt, as the surety’s own debt.

Exceptions from the District Court, Rice, J. presiding. Indictment for larceny, William Vanner was introduced by the government, and testified that he saw the defendant commit the act; and that he himself aided and assisted in the commission of it. There was some testimony corroborating, and some testimony impeaching, that of Vanner.

<p>Constitutional law — monopoly — injunction — rights of riparian proprietors — action — construction of statute.</p> <p>The riparian proprietors do not have the entire interest in the waters of a river, but the whole community have rights therein, which entitle them to regulate its public use, and these rights may be exercised by the Legislature as the agents of the public.</p> <p>Semble, that an Act of the Legislature of Maine granting to certain persons the exclusive right to navigate certain portions of the Penobscot river, above tide waters, for a certain time, is constitutional.</p> <p>Where any party claimed to exercise a right granted by an act of the Legislature, clearly unconstitutional, the court would not grant an injunction in his favor. The court would not refuse an injunction, if nothing appeared prima facie, against its constitutionality, semble.</p> <p>An act of the Legislature granted to certain individuals the sole right of navigating the Penobscot above Oldtown by steamboats, for twenty years, on condition (1,) that the navigation of said river in certain specified parts should be improved; (2,) that a steamboat should be built and run over the route; (3,) that a canal or railroad should be built around Piscataquis falls within seven years. Held, that, inasmuch as the act did not prescribe the mode of determining when the condition had been complied with, the actual running of a boat on the route prescribed must be considered as the best proof of the performance of the conditions.</p> <p>Questions relating to the sufficiency of such steamboat, as to size, power or the like, are not to be tested in suits between individuals.</p> <p>The “ twenty years” specified in the charter, commence running after the river has been so far improved as to be actually navigated by steam power, and the required rail road has been built and used.</p> <p>In certain cases, before an injunction can be granted, the complainant should have had his right determined at law, or have shown it to have been of long-continued existence and exercise. But where a State has authority to grant a right, and the grant is made upon conditions which are complied with, if is equivalent to the establishment of the right by a trial at law. The only reason under such circumstances for refusing an injunction, would be the unconstitutionality of the grant.</p> <p>If, in improving the navigation of the river under the Act above referred to, it becomes necessary to build a dam, which will have the effect of preventing the passage of boats, rafts, &e., no damages can be recovered against the grantee, except by riparian proprietors upon whose land the dam is actually constructed. The presumption will always be that such dams are necessary and are erected in good faith.</p>

<p>Writ or entry. There was evidence tending to prove that the land formerly belonged to the ancestor of the defendants ; and that the plaintiffs had occupied a portion, or the whole of it for more than forty years, for a school-house, woodshed and woodyard. It was proved, that a wooden school-house was erected there by the plaintiffs in 1802; it was taken dowrjL and a brick school-house was built in 1818 on the lot, near* the site of the wooden one. A woodshed was placed near the brick school-house in 1824. In 1847, one Samuel Wood was the school agent. He was called Tw the defendants as a witness, and testified that he procured the woodshed to be removed in the spring of 1847 from the north-westerly end of the school-house to the back side of the school-house at the other end ; that he found the building must be removed ; that it had been on another man’s land on sufferance ; "that the defendants asserted a title, and showed it to him, and required the building to be removed; that he became satisfied the district had no title to the land, and that he removed the building for that reason. That the expense of removing it was $25, which was paid by the town, out of the money assigned to that district.</p> <p>The plaintiffs objected to said Wood’s . testimony as not legally admissible," but the objection was overruled. It appeared, from the records of the district, that in June, 1847, soon after the removal of the shed, they had a meeting and took action for sustaining whatever claim they had to the land.</p> <p>The "defendants in their argument, contended that if, in 1847, the agent of the school-district, at the request of the defendants, removed the woodhouSe to its present location, intending to relinquish and give up the land, and the district had subsequently ratified his acts by then- conduct or otherwise, of which they were the judges; then such abandonment, notwithstanding the district might before that time have had an open, adverse, exclusive and notorious possession of the land, or some part of it, for more than twenty years, would operate an abandonment of their possession and a surrender of their claim to the former owners thereof, and the plaintiffs could not recover in this suit. The court, in opposition to the argument of the plaintiffs’ counsel, gave such instructions.</p> <p>The verdict was for the defendants, and the plaintiffs excepted.</p> <p>An open, notorious, adverse and exclusive possession of another person’s land, constitutes a disseizin. Such disseizin, continued uninterruptedly twenty years, becomes of itself a perfect title, as good as any deed could make. One who has acquired such a title can be devested of it only by the mode in which he could be devested of a perfect title acquired by deed. 1 Greenl. Ev. Part 1, <§> 17.</p> <p>Wood, the school agent, had no authority to dispose of lands, which the district, in any legal mode, had acquired. He was the agent, not of the district, but of the town. He was chosen by the town. As soon as his doings had become known, the district repudiated them, and did all in their power to regain possession. The instructions presented to the jury the question of ratification, by the district, of the doings of Wood. There was no evidence which called for such instructions, or could justify them.</p> <p>But, apart from any thing relating to ratification, the instructions were wrong. 14 Pick. 106; 7 Mete. 94; Hurd v. Curtis, 7 Mete. 97; Williams v. Nelson, 23 Pick. 141; White v. Crawford, 10 Mass. 183.</p> <p>Legal rights once vested must be legally devested; but equitable rights may be lost by abandonment. Pickett v. Dowdall, 2 Wash. 106.</p> <p>The acts of the school agent, in removing the woodshed, are binding on the district, especially after their ratification by paying the bills of expense. If the district could not surrender, except by a corporate act, neither could they dis-seize but in the same way. They never voted to disseize ; all the acts of occupation were but the acts of unauthorized individuals. Disseizin is trespass. Did tile district ho^pass r The individuals who put the buildings there, could' remove them.</p> <p>Rev. Stat. c. 17, <§> 40, gives school agents the custody of school-houses, with the right to repair.</p> <p>But, if the plaintiffs’ title had been perfected by a disseizin, they might waive it, as one might waive a forfeiture. They are not compellable to set it up ; they may retire and leave.</p> <p>The gentleman mistook when asserting that there was no evidence of ratification by the district. Their payment of the expenses, incurred in removing the shed, was a ratification.- A title by disseizin is not an absolute one, though it may be perfected at the election of a disseizor. Waiver or abandonment is to be regarded as evidence, that the possession was not adverse.</p>

<p>Exceptions from the District Court, Rice, J.</p> <p>Indictment, charging that the five defendants, being evil disposed persons, and wickedly devising and intending one Henry K. Baker, in his person to injure, then and there did unlawfully conspire, confederate and agree together, with the malicious intent, the said Henry K. Baker, wrongfully and wickedly to injure in his said person as aforesaid, against the peace of the said State of Maine, and contrary to the form of the statute.</p> <p>Also that the defendants, being evil disposed persons, and wickedly devising and intending to do a certain illegal act, injurious to the administration of public justice, to wit, to assault, beat, abuse, wound and ill treat one Henry K. Baker, in order to hinder and prevent said Henry K. Baker, one of the justices of the peace, within and for said county of Kennebec, from the performance and discharge of his duties in his office aforesaid, did unlawfully conspire, confederate and agree together, with the malicious intent, wrongfully and wickedly to do a certain illegal act, injurious to the administration of public justice, to wit, to assault, beat, abuse, wound and ill treat said Hemy K. Baker, in order to hinder and prevent said Henry K. Baker, one of the justices of the peace, within and for said county of Kennebec, from the performance and discharge of his duties in his office aforesaid, against the peace and dignity of said State of Maine, and contrary to the form of the statute.</p> <p>A general verdict of guilty was returned upon both counts. The defendants contended, that the indictment was bad, viz : — that the first count was bad and insufficient: —</p> <p>Because it does not specifically and minutely describe and set forth the illegal act complained of, or supposed to be the purpose of the conspiracy: —</p> <p>Because it does not specifically describe and set forth a conspiracy to do any act, by name, which indicates a crime in law, and does not particularly set forth the means intended to be employed, and how those moans were illegal and criminal: and because said first count does not set forth specifically the object, purpose and intention of the alleged conspiracy, and show in what manner the object was to be effected and that that object and those means constituted a legal crime.</p> <p>In regard to the second count, the defendants contended, that it was defective, insufficient and bad : —</p> <p>Because it does not specifically charge and fully set forth the purpose and object of the conspiracy, whether the conspiracy charged was to do an illegal act, or to injure the administration of public justice : —</p> <p>Because it does not charge, that the conspiracy was to do an illegal or criminal act, in and of itself, and does no specify and set forth the object or intended act of conspiracy; and does not set forth the means, and in what manner such means would effect the object and purpose of said conspiracy : — Because it does not charge or set forth, that said H. K. Baker was a magistrate, duly qualified to administer justice, nor that said Baker was in the act of administering justice, or was in the act of performing his duties as a magistrate, nor that he had even performed or contemplated, or had undertaken to perform any act, by virtue of the office of a magistrate of this county: —</p> <p>Because it does not set forth how, and in what manner, the said acts would affect the administration of public justice.</p> <p>But the presiding Judge overruled the objections.</p> <p>1. The first count is defective, in that it does not set forth what kind of injury to the person of Baker was intended, or by what means it was to be accomplished.</p> <p>2. The second count charges two distinct crimes, one to injure Baker, the other to defeat the administration of public justice.</p> <p>It is also defective because it does not set forth the means to be used, or how those means, if used, could defeat the administration of justice.</p> <p>It does not specify what duties of a public character, Baker was authorized or required to perform, or that he was in any act or in preparation for performing any act of such a character.</p>

Writ op entry upon a mortgage. The demandant read the mortgage in evidence. The tenant relied upon the following facts, which he offered to prove, viz : — Pitts and Bridge had contracted to sell a lot of land to Adam Johnson. Before he received the conveyance, Johnson gave to the tenant a warranty deed of a part of the lot.

Indictment charging, that the defendants “ devising and intending one Owen Lawrence to injure and defraud, did unlawfully conspire, combine, confederate and agree together the said Owen Lawrence to injure, cheat and defraud of a certain horse, the property of the said Owen Lawrence, of the value of one hundred dollars, against the peace and dignity of the State.

This was an indictment which alleged that the defendant, on the first day of January, 1850, intending unlawfully and fraudulently, and by false pretences, to cheat and defraud one Samuel W. Goff, of a certain horse, the property of said Samuel W. Goff, did falsely, knowingly and designedly pretend to the said Samuel W. Goff, that a certain mare, the property of said Benjamin P. Philbrick, which he, the said Benjamin P. Philbrick, proposed to exchange for the horse aforesaid…

Action to recover dower in the land of Benjamin Brown, the demandant’s late husband. While he owned the land it was attached upon a writ issued in a suit against him. While that attachment was pending he intermarried with the demandant. After the intermarriage, judgment against him was recovered in that suit, and a levy of the land was seasonably made upon the execution issued on the judgment.

<p>Assumpsit for money paid by the plaintiff’s testator prior to June 20, 1842, as surety for the defendant who relied, in defence, upon the covenants executed by the testator and others, in a general assignment of the defendant’s property, made on said 20th of June, for the benefit of his creditors. The covenants were to accept the provision made in the assignment and release the defendant from all claims. Under that assignment, the testator received four dividends at different times.</p> <p>The trial was before Wells, J. The defendant submitted to a default. If, in the opinion of the court, the action is not maintainable, the default is to be stricken out, and a nonsuit entered.</p> <p>For the defendant it was contended —</p> <p>1. That the release was a contract which it was competent for the parties to make ; and was effectual at the common law, although the assignment might not be valid under the statute of 1836.</p> <p>2. A creditor may voluntarily execute a release to his debtor. Having done so, the release is not invalidated by the mere fact that it was incorporated into, or connected with, an assignment of the debtor’s property. Fiske v. Carr, 20 Maine, 301.</p> <p>3. The plaintiffs’ testator, having become a party to the assignment, and received his dividends under it, shall now be estopped to deny its validity. 1 Greenl. Ev. sect. 207, and cases cited; Roe v. Jero'me, 18 Conn. 138 : Middleton Bank v. Jerome, ib. 443; Brown v. Wheeler, 17 Conn. 345; Kenney v. Farnsworth, ib. 355; IPAoreux v. Vischer, 2 Corn-stock, 278.</p>

Assumpsit for a quantity of hay. It was agreed that twenty-three tons of hay were shipped for Boston on board a schooner, whereof the defendant was master, in June, 1848, and consigned or entrusted to the defendant, as master of said vessel, for sale. The hay was laden on deck, by agreement of parties ; and it arrived at Boston on Thursday night, in good order and condition and well covered.

Exceptions from, the District Court. Assumpsit on a note of $200. In payment of an execution against Johnson, he gave to the plaintiffs three notes, payable on time. Interest on the amount paid by said notes, was reckoned from their date to their respective pay-days, at seven per cent, a year, and included in the sum, $2359,25, to which the notes amounted. Partial- payments were made from time to time ; some in cash and some in new notes, including the same rate of interest.

Trover for a horse. The case came from the District Court. A witness was there examined for the plaintiff, who testified to certain facts relative to the mode by which the plaintiff acquired his supposed title, and also relative to the sort of possession upon which he relied.

<p>Error does not lie to reverse a judgment of a justice of the peace, if the plaintiff in error had an opportunity to appeal.</p> <p>Wliere a party, by Ms counsel, appeared before the justice, he is considered to have had an opportunity to appeal, although, before the judgment was entered, h*e had permission, upon Ms own motion, to withdraw, and did withdraw Ms appearance.</p>

Trover against Rodney G. Lincoln, for certain promissory notes, amounting to nearly $5000. It was admitted, that before the commencement of the suit, the plaintiff had demanded the notes of the defendant, who refused to deliver them.

Actions oe the case, each charging, that Dunlap was the just and lawful owner of a lot of land; that said Glidden, however, had sued out a writ of entry for the land against Dunlap, and in that action had obtained a verdict and judgment for the same; that said verdict was obtained by the fraud of Glidden and by false testimony of two of the defendants and of other witnesses, under a conspiracy among all the defendants, by fraud and perjury, to deprive and cheat the plaintiff…

Writ ok entry. The land formerly belonged to Isaac Cowan. contends, that the land vested in the demandant by force of a devise in Isaac Cowan’s will, and also under a conveyance from Isaac Cowan to Alfred Cowan, made after the date of the will, and a release from Alfred Cowan to the demandant. contends, that the land became the property of the tenant by the levy of an execution in favor of the Augusta bank against said Isaac Cowan, upon an attachment made prior to his said…

<p>An appeal from the doings of County Commissioners, on a petition for the establishment of a highway, opens to the consideration of the committee, appointed by the District Court upon the appeal, the whole question which was before the County Commissioners.</p> <p>If said Commissioners had established a portion of the road prayed for, and refused to establish the other portion, it is competent for the committee to establish the whole road.</p> <p>Where the Commissioners have established one portion of the road prayed for, and, in their return, made no mention of the remaining portion, their silence in that respect, is to be considered a refusal by them, to establish such remaining part.</p>

Assumpsit on the money counts. The statute of limitations was pleaded, to which the plaintiff replied that the defendant fraudulently concealed the cause of action. The case was submitted to the decision of the court, upon the evidence as reported by Wells, J., before whom the trial was had.

Exceptions from the District Court. Assumpsit on book account.

Assumpsit upon a promissory note. The defendants were defaulted by consent, subject to the opinion of the court, as to their liability. The note was signed “John O. P. Stevens, principal: — W. & H. Stevens, sureties.” William Stevens and Hiram Stevens were co-partners in navigation and business of commerce, under the style of W. & H. Stevens. Their company name was affixed to the note, in the form above stated, by Hiram Stevens.

<p>Assumpsit upon a policy of insurance, whereby $2500 was insured upon the cargo and $300 upon the freight of a schooner on a voyage from Gardiner to a port in the Chesapeake. The plaintiff claimed for a total loss of a quantity of potatoes, being that part of the cargo covered by the policy.</p> <p>Notice of the loss was duly given to the defendants, and a demand made as for a total loss. But there was no abandonment.</p> <p>The history and character of the disaster were given by a witness for the plaintiff. The substance of his testimony is presented in the opinion of the court.</p> <p>Upon that testimony, and upon notarial copies of the protest and survey, so far as admissible in evidence, the case was submitted to the decision of the court.</p> <p>I. The evidence fully establishes the fact that the loss was occasioned by the perils of the seas. “Próxima causa non remota spectaturP</p> <p>II. This was a total loss, for which the insurers are liable, because : —</p> <p>1. No portion ever reached the port of destination, nor under the circumstances was it the master’s duty to forward them. Narcasdier v. Cheshire Ins. Co., 8 Cranch ; Dyson v. Rowcroft, 3 B. & G. 474; Roux v. Salvador, 3 Brigh. R. 266.</p> <p>2. It is well settled, that where the voyage is broken up by the destruction of the vessel, and it would not be the master’s duty to forward, there would be a total loss of a perishable cargo, though existing in specie. Poole v. Insurance Co., 14 Conn. 47; Robinson v. Insurance Co., 3 Sum. 220; Murray v. Hatch, 6 Mass. 475; Parry v. Aberdeen, 9 B. & C. 411; Treadwell v. Ins. Co., 6 Cowen, 270; 14 Johns. 138.</p> <p>How much stronger, where the voyage is broken up by the perils of the sea, rendering the cargo of no value at an intermediate port, and of course of no value at the port of destination, if forwarded.</p> <p>The true rule is that, when the goods would be of no value, if forwarded to the port of discharge, and the damage occurs by the perils insured against, the insurers will be liable for a 'total loss.</p> <p>ILL A total loss is where the goods lose their whole value by the perils insured against, whether fire or shipwreck. What difference^ does it make to either party, if the value is gone, whether the article exists or not ?</p> <p>IT. It has been settled, that it is a total loss of a perishable cargo, where the value is lost to the insured, even though pari of it reached its port of destination. Williams v. Cole, 4 Shcpl. 207 ; Hngg v. Augusta Ins. Co., 7 Howard, 595, and in cases above cited.</p> <p>I. The loss was not from any peril insured against, but from inherent cause of decay in the potatoes. Can the court say it was from sea perils ? They would not keep in our cellars. The world knows of the modern disease in the potatoe. Brit if occasioned by leakage, defendants are not liable. Here was not even a total loss of a part of a thing. All was saved though damaged. Beneeke, 407 ; Abbott, 2d Am. Ed. 283 to 325. The potatoes might have been carried forward. There was not a total loss, for enough were sold to bring $192.</p> <p>For plaintiff to recover, there must be of memorandum articles, an actual total loss. The rules generally applicable to losses do not apply to memorandum articles. 1 Johnson’s Cases, 196 ; 3 Caine’s, 108; 12 Johns. 107.</p> <p>II. The schooner ought, after repairing, to have gone to the Chesapeake. She was prevented only because there were higher freights elsewhere. She was repaired and loaded in two weeks. The delay therefore was no ground of claim.</p> <p>There was no abandonment; notice of loss is not equivalent.</p> <p>The reason of the distinction between perishable and other articles is, to avoid the necessity of determining how much of the loss has arisen from inherent decay, and how much from the perils of the sea. For plaintiff to recover, would unsettle this most salutary principle.</p> <p>There is no ground to recover for the loss of freight.</p> <p>The vessel could and ought to have carried the freight by proceeding on the voyage. 1 Johns. 225 ; 3 Johns. 321.</p> <p>Reliance seems to be placed upon the decision, Hugg v. Augusta Insurance and Banking Co., 7 Howard, 595. But that case widely differs from this.</p> <p>1. The policy was on the freight only, not on the cargo.</p> <p>2. The bark Margaret Hugg was twice stranded, with seven feet of water in her hold. The schooner never stranded.</p> <p>3. The cargo of the Hugg was forbidden to be landed by the board of health, except 150 tons, and that was ordered to be removed.</p> <p>4. The cargo of the Hugg was not sold for any thing.</p> <p>5. “ The M. Hugg could not be repaired at that port, so as to have carried on the cargo.” “ She was only repaired sufficiently to bring her home in ballast.”</p> <p>6. “ No other vessel could be procured to forward on the remaining cargo, even if it had been in a • condition to be shipped.”</p> <p>7. The law, as stated in pages 605 and 606, is in accordance with our views, so for as the same is applicable to the case at bar.</p>

Assumpsit for supplies furnished to Elias Chick and family as paupers. It was admitted that Chick had gained a settlement in Minot by residing and having his home more than five years in that part of it which, on the 24th of February, 1842, was incorporated into the town of Auburn. The defendants contended that, if the pauper did not actually dwell and have his home in the bounds of Auburn, at the time of its incorporation, that town is not liable in this action.

Writ of scire facias, on a recognizance, entered into before a justice of the peace.

This case was submitted to the court upon a report of facts agreed.

Case against an innkeeper, for an injury to the plaintiff’s horse, while at the defendant’s stable. The horse was placed at the stable in the evening, and one of his hind legs was found, in the morning, to have been broken above the gambrel joint. The evidence tended to show, that he was treated with care and faithfulness, that he was placed in a safe and suitable stall, with sufficient and suitable bedding; and that the injury happened without the fault of any one.

Writ of entry. General issue, with claim of betterments. The demandant was formerly seized of one fourth part of a tract of land, as a tenant in common with others. On the 1st of May, 1847, he filed a petition for partition, and, after the giving of the public notice, ordered by the court, such proceedings were had as that a portion of the land was set off to him in severalty, by commissioners, whose report was accepted' in May, 1849.

Libel for a divorce, setting forth the marriage in 1822 ; and that, in June, 1848, the respondent deserted the libelant wilfully, and without reasonable cause, and has ever since lived separate and apart from her, has neglected and refused to furnish suitable maintenance for her, or their minor children, seven in number, although abundantly able to so provide for them; that, for the three or four years prior to the time of said desertion, and up to this time, he has been an…

Libel for divorce, setting forth the marriage in 1831, and that for the last eleven years the respondent has treated the libelant with great disregard and contempt; has evinced a want of that respect and affection for him, necessary to the peace and well being of a family ; that her conduct has been unkind and censorious ; that she has denied him the rights of a husband ; endeavored to injure him in his profession, as a physician, and in other modes rendered the life of the…

Error, to a justice of the peace of this county. Plea, in nullo est erratum. Day sued Blanchard, whose residence is in Belgrade, and recovered judgment on default, before the justice. The writ in that action was in the common form of a writ of attachment and summons.

Exceptions. Assumpsit on an account. The writ was issued April 25, 1848. The account consisted of two items, viz : — 1847, October 13. To leather, $421,20 “ November 23, To leather, 361,69 The plaintiffs gave credit to the defendants, as follows: — 1847, June 15, $23,88. 1848, June 27, $61,37.

Exceptions by the plaintiffs. Assumpsit upon a note given by one Seth Wood and indorsed by tho defendant; also upon a draft drawn by said Wood and accepted by the defendant. Wood had given to the defendant a mortgage of personal property to secure him against said indorsement and acceptance. The defendant released Wood, and offered him as a witness. He was objected to, but admitted by Wells, J. presiding.

Exceptions from the District Court, Rice, J. Assumpsit for money had and received. The defendant pleaded in bar that the plaintiff was not administrator. The court rejected the plea. The defendant then pleaded the general issue, with a protest that he did not waive the defence, set up in the plea in bar, but reserved the right to avail himself of it in any stage of the case. This plea was also rejected. The defendant then pleaded the general issue.

<p>The petition sets forth, that one Plummer, an owner of land in Waterville, had applied to the County Commissioners for an assessment of damages, sustained by the location and establishment of a town way across his farm; that, after certain proceedings had, a jury assessed his damages at $100, and the County Commissioners adjudged that the town pay him that sum, and also pay costs $83,92; that, in taking cognizance of said application and acting thereon, the Commissioners proceeded illegally, and that errors appear in their record, viz: —</p> <p>1. It does not appear by the record, that the Commissioners had any jurisdiction of the matter they acted upon.</p> <p>2. It does not appear that the selectmen had made any adjudication on the subject of the damages; nor had they in fact made any.</p> <p>3. It does not appear, that- any town road had been laid over the land, nor in fact was there any legally located road there.</p> <p>4. It does not appear that the jury examined the land, upon which the petitioner alleged the road to have been established, nor does it appear that the damages assessed by the jury were on account of such a location.</p> <p>5. The costs allowed by the Commissioners were excessive and illegal.</p> <p>Smith, for the petitioners, contended, that the town had no notice of the meeting of the jury, and to show that fact, he offers to read the sheriff’s return.</p> <p>Court. Unless the return be on record, we cannot hear it. The certificate of the jury is in the records, saying, “ we have heard the parties, their proofs and arguments.”</p> <p>Smith. That certificate shows the petitioners to have been present. But they appeared only to take advantage of errors in the previous proceedings. This is what we wish to show by the sheriff’s return.</p> <p>Court. That return, not being on record, must be excluded.</p> <p>Smith. If then the appearance before the jury is to be inferred, I hold it may also be inferred, that the appearance was merely to show there was no reason for any further proceedings by the jury; because, in fact, there had been no decision by the selectmen on the question of damages. The jurisdiction of the court must be shown by their records. State v. Pownal, 10 Maine, 24. But the records in this case do not show it.</p> <p>1. They contain nothing to show that a road had been laid out.</p> <p>2. They do not show that the supposed road was laid out within a year next before the petition was filed. '</p> <p>8. They contain nothing to show that the selectmen, before locating, had notified the parties, nor that the town meeting was called upon seven days notice ; and there are many other deficiencies. All these things ought to have been shown to the County Commissioners, and by them adjudged to have been proved, and by them put upon record.</p> <p>• 4. The Commissioners '"had but an appellate jurisdiction. In this case, as to damages, there had been no adjudication by the selectmen, from which to appeal. Craigie v. Mellen, 6 Mass. 7; Harlow v. Pike, 3 Maine, 438.</p> <p>The selectmen ought to have estimated the damages, to enable the town to judge on the question of acceptance, and to give the land-owner a right to appeal. That not having been done, there was no legal road, and therefore no damage was sustained.</p> <p>If, at the time of establishing a road, the damage be not provided for, there is no legal road. Const. Art. 1, <§, 21.</p> <p>It does not appear, that the jury examined the route of the road. They only examined the farm.</p> <p>The selectmen, in their report, described only a line, not a road. -</p> <p>1. The respondents’ counsel objects, that the Commissioners had no jurisdiction, because it does not appear that the selectmen laid a road. It is a sufficient answer to say, the petition to the Commissioners described a location. The road was in process of being made when the jury were there.</p> <p>Another objection is, that it does not appear that the application was made to the Commissioners within the year; but that is unfounded. The petition is dated within the year.</p> <p>Another objection is, that the selectmen have not yet determined upon the amount of damage, and that, therefore, there was nothing for this petition to rest upon.</p> <p>It is the location upon our land that has injured us. It is that which gives the right to recover damage.</p> <p>Morrill then called a witness, who testified that the road has been actually made by the town, and upon the route described in Plummer’s petition.</p> <p>Since the filing of this petition, the selectmen and the town, finding their former proceedings were invalid, have established a road there anew. Upon this last location, damage was assessed for Plummer, the amount of which is in readiness for him.</p>

These were actions of trespass quare. By agreement they were submitted upon the same evidence. At first the declarations described a large tract, as the locus in quo. Afterwards, they were limited to that part of lot No. 13, which lies east of the brook. The defendants pleaded general issue, with brief statement of title in Ebenezer Brann and Joab Harriman, and justified under them.

<p>F conveyed land to S, and also gave him anybligation, that if, at the end of a year, the land should not be worth the money he had received therefor, with its interest, he would make up the deficiency, “ or otherwise pay that amount on receiving a re-conveyance.” S at the same time gave to F a bond that he would, on being paid the said amount, at any time within the year, reconvey the land. Held, that during the first year S could have no right of action against F on the obligation, because F had the election to redeem within the year; but that at the end of the year his right of action accrued, and that therefore the statute of limitations began to run from that period.</p>

Complaint for illegally selling “ spirituous liquor, viz, one glass of wine.” The complaint did not specify by whose hand the defendant sold the article. It was tried in the District Court, Rice, J. The defendant’s counsel requested the court to instruct the jury that, unless the defendant sold the wine by herself and not by her agent, clerk or servant, she could not be charged. This instruction was not given.

Exceptions from the District Court, Rice, J. Complaint for illegally selling spirituous liquor, viz, one pint of gin. There was conflicting evidence whether it was paid for at the time of the delivery. The defendant offered to prove, that a few days after the gin was furnished by him, he told the man who had it, that he had made no charge for it, and would take no pay. The evidence was excluded.

Covenant broken. The action was referred to the Hon. Ashur Ware, by a rule of court, containing no restriction upon his powers, as referee. His award was made in favor of the plaintiff, for $ 1548,60 damage, with costs of court, and of reference. At the request of the defendant’s counsel, the referee put into writing an exposition of the views and considerations upon which the award was founded.

Exceptions from the District Court, Rice, J. Complaint for violation of the Act “ to restrict the sale of intoxicating drinks.” The complaint charged, that the defendant made a sale, &c. The government called a witness, who testified that he bought two quarts of rum at the defendant’s store ; that the defendant was not there; that a man within the counter, whom the witness did not know, drew the rum and received the pay.

<p>Exceptions from the District Court, Rice, J.</p> <p>This was a complaint for violating the “ Act to restrict the sale of intoxicating drinks,” alleging, that the defendant “sold to'one Mrs. Brown a certain quantity of spirituous liquor, to wit, one pint of New England rum, the same not being wine or spirituous liquors, imported into the United States from any foreign port or place.</p> <p>The evidence was, that a child of two or three years of age had met an accident; that a regularly practising physician had prescribed the application of rum to the injured part; that its mother, Mrs. Brown, bought the rum for that purpose ; that none of it was drunk; and that no person in the town had license to sell for medical purposes. The Judge instructed the jury that, if the evidence was believed, the charge against the defendant was established. Verdict for the State. Exceptions by the defendant.</p> <p>The complaint is insufficient: — First, because it does not negative the exceptions contained in the first and in the twenty-fourth sections of the Act: —</p> <p>Secondly, — Because the Christian name of Mrs. Brown, to whom the liquor was sold, is not given. A conviction in this case would not bar another prosecution for the same act.</p> <p>The meaning and the title of the Act is to restrict sales for drink. The Act is penal, and should receive a liberal construction for the accused. This sale was for medicinal purposes, under the order of a respectable physician. The ruling was in effect, that the intent was not to be taken into the account.</p>

Indictment, founded on R. S. chap. 155, sect. 3. It was for setting on fire and burning the bam of one Joel S avago being within the curtilage of his dwellinghouse, “ by which said firing, the said dwellinghouse was endangered.” The trial was before Wells, J. The following rude diagram and description will sufficiently illustrate the localities, according to the evidence.

Case, founded on Revised Statutes, chap. 148, sect. 49, for aiding and assisting one Buck, on the 15th of August, 1846, in a fraudulent transfer and concealment of certain property, to defraud his creditors. The writ is dated August 25, 1848. The general issue was pleaded severally by the defendants, with the statute of limitations. Evidence as to the facts alleged, was presented to the jury.

Assumpsit, transferred from the District Court upon legal questions stated. Irish is the nominal, Severancé is the real, plaintiff. One Farrington signed a negotiable note to Irish, who assigned the same, without indorsement, to Cutter, the defendant.

Assumpsit, on a promissory note made to the plaintiff by Goodenow as principal, and by Rounds, as surety, payable at a specified day. Goodenow was defaulted. Rounds defended, and insisted that he was exonerated by means of a contract for delay, made after the pay-day, for value, by the plaintiff with the principal, without the knowledge of the surety.

Assumpsit for money received to the plaintiffs’ use. The following facts were proved. The defendant and William Walker, and the female plaintiff, are the children of Nathaniel and Abigail Walker, both of whom are now deceased. Nathaniel Walker was for many years, a pensioner of the United States, on account of services rendered in the war of the revolution. Upon his death, the said Abigail, his widow, became entitled to a pension under the law of the United States.

Writ of entry, to which the general issue was pleaded. The material part of the evidence is sufficiently apparent in the opinion of the court. It was conceded at the argument, that John Grover had by leave of the defendant been in possession of the premises, ever since the demandant’s title accrued.

The wife of the appellant represented to the Probate Court, that he was insane, and prayed that a guardian might be appointed. .After inquisition and notice, a guardian was appointed. From that decree this appeal was taken. One reason given for the appeal was, that a wife could not legally bo a party to such proceedings.

Replevin for a horse. The defendant filed a brief statement of property in himself. The plaintiff replied property in himself. One Buck formerly owned the horse. He conveyed it to the plaintiff, and soon afterwards also conveyed it to Deane. From Deane it passed through an intermediate conveyance to Thompson. The defendant purchased of Thompson, bona fide, and for full consideration. To prove the sale to the plaintiff fraudulent, the defendant called Buck as a witness.

In the justices’ court, the defendant was defaulted. He then claimed an appeal, which the justice allowed. On motion, in the District Court, Cole, J., the case was dismissed with costs for the plaintiff. The defendant excepted.

On exceptions. Slander. Plaintiff alleges himself to be “ an able, respected and accomplished public teacher of the polite art or accomplishment of dancing.” Yet defendant, well knowing, &c., and intending to defame and injure the plaintiff in his good name, “ and in his said art or occupation as a public, able and faithful dancing master, did falsely and maliciously accuse the plaintiff of drunkenness, idleness, vagrancy and worthlessness of character, and of having raised…

Assumpsit by attorneys and counselors, for several term fees and for services in court, relating to the acceptance of an award. The plaintiffs offered their book with the suppletory oath of Mr. Codman. That evidence was objected to, b*e-cause not the best, which the nature of the case allowed. The objection was overruled. Mr. Codman, being sworn, was asked by his counsel, whether the services were performed at the defendant’s request.

This was an action against Mark Hill upon a contract of which the following is a copy. “ Whereas I hold a note signed 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 Greenleaf Hill, one-eighth of said sums when collected. «February 23, 1837.

<p>In submitting to the decision of the court, an alternative award of referees, under a rule of court, it is competent for them to present, not the evidence, which was before them, but the facts, which in their opinion,’ were proved by that evidence.</p> <p>Where a referee, through misapprehension of the right course, submitted, in an alternative award, not the facts but the evidence, the award was recommitted. t</p>

<p>A promise to Ms creditor, made by a debtor, after having been decreed to be a bankrupt, and before the obtaining of Ms discharge in bankruptcy, that he will pay a previously existing debt, will not be impaired by the subsequently acquired discharge.</p> <p>Such a new promise is held to moan, that the promisor will [not set up Ms expected discharge to avoid the payment of the debt.</p> <p>Such a promise revives the debt. It need not be declared upon as the cause of action, but may be proved as a bar to the operation of the discharge.</p> <p>The statute passed August 3, 1818, e. 52, requiring such new promise to be in writing, is not applicable to actions commenced before its enactment.</p>

Entry. The tenant prays judgment of the writ, because, as he says, after the last continuance of this cause, and before this day, that is to say, On, &c., one Joseph Shurburne, a deputy sheriff within and for said county, having an execution in his hands for collection, against the said Daniel Burnham, and in favor of one David Dyer, entered upon the premises mentioned in the writ of said Burnham, by virtue of said execution, and disseized the said Howard thereof, and ousted…

Assumpsit. The defendant became, by purchase, the owner of nineteen shares in the plaintiff corporation, which was chartered in 1834. An assessment was afterwards laid upon them, and, to enforce the payment of that assessment, they were sold by the company. The proceeds of the sale were insufficient to pay the assessment, and this suit is brought to recover the balance.

<p>Assumpsit, on a note payable six months after date. - It Avas dated, Dec. 9, 1847. The action Avas commenced on June 12, 1848. The plaintiff then offered John L. Cutler, Esq., as a witness. He was objected to on the ground of interest, being indorser of the writ, and the plaintiff being resident out of the State. Thereupon a third person, in the absence and without the knowledge of the plaintiff, voluntarily, of his own money, deposited with the clerk a sum which was admitted to be sufficient in amount, to be appropriated to pay the costs, if the defendant should prevail.</p> <p>If that testimony was admissible, it is to be considered proved in the case, that the defendant’s residence, at the making and at the maturity of the note, was in Wilton, and at the distance of thirty miles from any bank; that on Monday, the 12th day of June, 1848, “about or a few minutes before three o’clock in the afternoon,” the note was presented to the defendant for payment, who refused to pay it, and said he had no recollection of giving such a note, and would never pay it. Whereupon the writ was immediately dated, and delivered to the officer, and an attachment made. It was objected that the action was brought too early. The trial was before Shepi/et, C. J., who ruled that it was not prematurely brought. The defendant excepted.</p> <p>Mr. Cutler’s testimony was inadmissible. He indorsed the writ and was liable for costs.</p> <p>The deposit by a third person, having no interest, was ineffectual. It is like a tender, made by a stranger, which is invalid. Kincaid v. School District, 11 Maine, 188; Law Reporter, vol. 10, 136. The depositor might recall the money. There was no valid consideration, upon which the clerk could withhold it. He might return it or might waste it. His bond would not cover it.</p> <p>The suit was premature. The pay-day was the 10th of June, excluding the day of its date. The statute gave (grace,) 3 additional days, so that the 13th instead of 12th of June, was the last day of grace. 2d Barr, Penn. 495, is directly in point.</p> <p>But, if it can be held that the note was payable on the 12th of June, the suit was commenced too early. The maker of the note was entitled by statute, not by conventional indulgence, to three days, three full days grace. Thomas v. Shoemaker, 6 Watts & Sargent, 179 ; Sevan v. Eldridge, 2 Miles, 353 ; Osborn v. Moneare, 3 Wend. 170.</p> <p>FiVen where grace is given by commercial usage, and not by statute, the party is entitled to’ the uttermost convenient time allowed by the custom of business of that kind, in the place where the note is presented. 2 Kent’s Com. 101, 102.</p> <p>There being no bank at Wilton, nor within thirty miles, the defendant was not restricted to bank hours, within which to pay his note, and it being there, as in other country places, usual to receive payment of notes certainly until dark, the defendant was entitled to that time in which to pay his note. But even if the defendant was restricted to bank hours, the writ was made and placed in the officer’s hands, before the expiration of those hours.</p>

Entry. General issue, with claim for betterments. Joseph Bullen purchased the land in March, 1842. There were then no buildings upon it. A house and other structures were erected upon it by the tenant’s husband, who occupied the same till his death, in the spring of 1847, and since that time the tenant has continued to occupy them. The laud, without the buildings, is worth $90 ; with them, $850.