Volume 32 — Maine Reports

Assumpsit to recover back money, paid for illegal interest, upon certain notes given by the plaintiff to the defendant, and signed also by Orrin Footman as surety, dated in 1834. The plaintiff offered Orrin Footman, as a witness, who was objected to, because a party to said note, but was admitted. It appeared that judgment upon the note, including the illegal interest, was recovered against this plaintiff in Oct. 1845, which was paid by him on execution in the spring of 1846.

Exceptions from the District Court, Redington, J. The defendant at a former term, in a prosecution by plaintiff against him, had been adjudged the putative father of her bastard child ; and was ordered to give certain bonds according to the statute. Not complying with the order, he was committed to jail on the 20th day of July, 1844, that being the day on which said complaint was tried.

<p>Award of referees. Defendant moved to set it aside, because: —</p> <p>1. He entered into the submission, induced only by the deceptive contrivance of the plaintiff and his counsel.</p> <p>2. One of the referees had prejudged the case, and previously expressed his opinion.</p> <p>3. The referees did not agree upon the award.</p> <p>4. They did not report the amount of their fees.</p> <p>In support of the first ground of objection, the defendant offered his own affidavit, which the court, Rice, J., rejected.</p> <p>As to the second, there was some testimony. But the Judge did not consider that it proved the- allegation made by the defendant.</p> <p>Relative to the third, one of the referees testified that he did not agree to the award, but signed it, because told by the other referees, he would not otherwise be entitled to fees, and that his signature would not add to the validity of the award.</p> <p>The award did not state the amount of the referees’ fees. But they were inserted in an unauthenticated paper, made up by plaintiff’s attorney, which was returned to the court in the same envelope with the award.</p> <p>The award was accepted. The defendant excepted.</p> <p>That the referees did not agree upon the award, is proved by the testimony of one of their number, disclosing the management, corruption and ignorance of the others, and that is good cause for setting aside the award.</p> <p>The court has power to reduce the compensation of referees. R. S. chap. 138, sect. 11.</p> <p>The amount of their claim should therefore be stated in their award. Proof aliunde is inadmissible.</p>

Debt on judgment, recovered before a justice of the peace. Plea, nul tiel record. The plaintiff offered what purported to be a copy, duly authenticated by the justice. The defendant objected to it, and offered to prove, by another authenticated copy of the same record, and by a certificate of the justice, that the first, through his misapprehension and mistake, was erroneous.

Debt upon a poor debtor’s bond. The trial was Tenney, J. The defence was that the debtor had taken statute oath. That defence was resisted on the ground, that the plaintiff had not been duly notified. He offered evidence to prove that fact.

Trover for 500 mill-logs. A contract had been made between the plaintiff and M. Hildreth as follows: — That the said Sawyer has sold, or agreed to sell said Hildreth a certain, lot of mill-logs, cut by the said Sawyer the past winter on Day’s Academy Grant, surveyed by Dan’l S. Webb, as follows, viz: — 2906 logs marked A, to make 501,960 ft. at 9,00 =$4517,64.

Assumpsit on the following contract. “In consideration of what I am indebted to Bates & Selden, I hereby agree to let them have fifteen tons of good hay at my barn, the fall and winter coming, at the market price. July 22, 1842.” At the trial before Tenney, J. the defendant offered to prove, that at the pay-day named in the contract, he had sufficient hay in his barn to pay it.

<p>In relation to a note, given since the statute of 1844, and made payable to a married woman, the party, who would establish title in her, takes the onus of proving that it did not, in any way, come from the husband.</p> <p>In a trustee suit, the holding of a chose in action, belonging to the defendant, will not charge the holder as trustee. A note, belonging to a husband, though made payable to his wife, is a chose in action.</p>

Writ or entry. Trial before Tenney, J. General issue and claim of betterments. The demandant read a deed of warranty to him from the tenant, conveying the premises. The tenant offered to prove, by parol, that he owed the demandant upon a note, and that said conveyance was made to secure the note, which he has since paid. The evidence was rejected.

<p>After the nonsuit of an action, a second suit upon the same demand may be stayed by the court, until the defendant’s costs in the former action be paid, notwithstanding the second suit is brought by an assignee, who, when purchasing the demand, had no knowledge that it had previously been put in suit.</p>

<p>A prosecution for unlawfully selling spirituous liquor may be by civil action, or by complaint in criminal form.</p> <p>In case of a conviction of such offence, it is not necessary that the justice wait forty-eight hours to give opportunity of appeal. It may be made after commitment.</p> <p>The penalty for a second offence belongs to the State. That the justice awarded one half of it to the prosecutor, furnishes to the offender no juat ground of complaint.</p> <p>Costs may be awarded, in addition to the penalty.</p> <p>In a mittimus, it is not necessary to copy the complaint, or to state the proofs before the justice.</p>

Complaint for flowing plaintiff’s land by means of a mill-dam. The defence set up was, that defendants, by user, had obtained the right to flow. It appeared that the dam had stood more than twenty-five years before the complaint was filed ; that it was as high in 1823 as at any later period, but by tightening it, the flowage had been greater. The defendants showed title to the dam and mills derived from Thatcher in 1836.

Indictment, found in the District Court, against the two defendants for having counterfeit money with fraudulent intent, &c. One of them had recognized to appeal’ there, hut the recognizance did not specify for what offence he was to answer. The other defendant had neither recognized nor been committed. The indictment had been transferred to this court. The counsel for the defendants now moves that it be quashed.

Special demurrer to declaration. The writ was dated in 1849. There were two counts; one in common form of indebitatus assumpsit, for if 1000, money had and received; the other upon a note, dated August 19, 1841, promising Eben H. Niel to pay him or order f500 on demand and interest.

Assumpsit on a note dated in 1833, promising the plaintiff to pay him forty dollars in one year, or on demand, if called for, in blacksmith’s work. The writ is dated in 1848. The defendant relied upon the statute of limitations. The case was submitted for a legal decision.

Case, for an injury sustained by the female plaintiff, through a defect in the highway of the defendant town. She was riding on the highway in a wagon. Evidence was introduced to the jury by the respective parties, as to the existence of the defect, the happening of the injury by means of it, and as to the care and prudence used by the plaintiffs. Some evidence tended to show the breaking of a ring in the harness, at, or just prior to the accident.

Trover for goods. The plaintiffs are merchants resident in Boston. In 1847, they let one Brown have the goods, and they now allege it to have been by fraudulent pretences that Brown obtained them, and that the defendant, with a knowledge of that fact, converted them to his own use.

Indictment for defects in a highway. After verdict against defendants in the District Court, they moved in arrest of judgment. The motion was overruled, and the case was brought into this court by exceptions.

Indictment, found at the March term of the District Court, 1847.

<p>Assumpsit, for supplies furnished to Julia Packard, the legitimate child of Silas Packard, whose settlement was formerly in Readfield, but who had afterwards resided in Levant for the term of five years ending in Dec. 1848.</p> <p>Julia deserted her father’s house in Dec. 1845, without his consent or knowledge, and lived in vagrancy and crime, and though she once returned and remained two days at his house, she refused to make her home there or.to stay there any longer. She was several times committed to the house of correction in Bangor, and there received the supplies, for which this suit is brought.</p> <p>The case was taken from the jury by consent, and submitted to the court for a legal decision.</p> <p>Supplies furnished to minor children are supplies furnished to their father, so as to affect his settlement. 3 Greenl. 136, 205; 5 Greenl. 143; 26 Maine, 167; 19 Maine, 441; 4 Greenl. 47.</p> <p>Minor children cannot have a settlement distinct from that of their father, unless emancipated. 1 Greenl. 93, 196 ; 18 Maine, 376; 19 Maine, 447.</p> <p>This child was not emancipated. But if she was, she gained no new settlement of her own. She cannot be so far emancipated, that supplies furnished to her will not prevent her father’s gaining a new settlement in Levant, and yet not so far as to prevent his new settlement taking away her derivative one.</p> <p>Emancipation and abandonment are different things, and have not the same effect upon questions of settlement. 2 Fairf. 190; 3 Greenl. 205; 27 Maine, 489.</p> <p>This was not a case of emancipation. Parental control was never relinquished. It was a case of desertion or abandonment by the child. The father was of ability to support her, and was desirous to support her at his own home. The supplies were furnished without his knowledge or consent; and he was never called on for re-payment.</p> <p>Such supplies, so furnished, cannot affect the question of his settlement. 19 Pick. 480; 13 Pick. 303.</p> <p>The cases cited on the other side relate to supplies furnished, not to the children, but to the wife. The wife must follow the settlement of her husband; but children, if emancipated or abandoned, may acquire one for themselves.</p>

<p>If a person, purchases land, (from, one who had previously conveyed the same in mortgage,) and then sells the same at different times in separate parcels to several purchasers, it may be, that, in equity, the portion last conveyed, if of sufficient value, will be chargeable with the whole mortgage debt.</p> <p>In this case, the last sold portion was of sufficient value to discharge the mortgage, and the purchaser thereof bought in the mortgage debt, and took an assignment of the mortgage, and foreclosed the same. He then, under a claim of title to the whole tract, released to the purchaser of the first sold portion, his, (the assignee’s,) right in this portion, upon being paid by said purchaser, a sum of money therefor. Held, that said releasee could not, in an action at law against the releasor, recover back the money, though paid under a belief that the releasor, when giving the release, had title to the whole tract.</p> <p>Whatever may be the right of the releasee, his remedy is at equity alone.</p> <p>Note.—Wells, J. took no part in this decision.</p>

Writ of entry for possession of a house and lot in Bangor. The case was submitted for nonsuit or default upon a report of facts. The demandant claims under a sale made to him by a collector of taxes. One Marshall had mortgaged the property, and the tenant had become assignee of the mortgage. The right of redeeming had been fully foreclosed in 1842.

Assumpsit, upon a negotiable note, dated in 1833, payable at four months, brought by the indorsee against the executor of the indorser. Under the general issue, testimony was offered and submitted to the consideration of the court, with power to draw inferences as a jury might. There was also a plea of limitations under R. S. c. 120, 23, and c. 146, § 29. The facts pertaining to both pleas are presented in the opinion of the court.

Debt upon an award of referees, rendered upon a submission made in the form provided in R. S. c. 138, By a written agreement, the report of the referees was made to this court, instead of the District Court. The case was dismissed by this court for want of jurisdiction. 29 Maine, 70. The year, allowed in the submission for returning the award to the District Court, having expired, this action is brought as upon a submission and award at the common law.

Care, for obstructing a passage way, to the injury of the plaintiff. The following diagram may be of use in illustrating the points discussed. The plaintiff purchased lots No. 29 and 30, by the plan being part of the fifty acre Emery land. In his deed, lot No. 30 was described as commencing at the distance of 25 feet from the south line of the Emery lot.

Suit against the defendant, as indorser of a writ, brought by one Taylor against this plaintiff, upon which costs had been recovered against Taylor. The officer’s return upon the execution proved the avoidance and the inability of Taylor. The plaintiff introduced, though objected to, the docket entry and the record of the suit, Taylor v. Wilson, by both of which it appeared that Hobbs had indorsed said writ.

Exceptions from the District Court. Assumpsit to recover for a bonnet, alleged to have been sold to the defendant. The plaintiff offered Mrs. Page as a witness. Though objected to, she was admitted.

Assumpsit. The plaintiff was a depositor in the. defendants’ bank. He introduced his bank book, in the handwriting of the cashier, in which he had been credited on deposit $604,61; but a few days after that credit had been given, the cashier altered its amount to $504,61, when having occasion to make a new entry on the hook. This suit is brought to recover the difference, $100.

Covenant broken, brought on a sealed contract to convey a lot of land in Garland, if the plaintiff should pay therefor a fixed price, in several specified instalments. The contract was executed in the name of the defendant, by one Bartlett, as his attorney. The only question in the case relates to the authorization of Bartlett to make the contract.

Assumpsit, by one co-surety to recover contribution against another co-surety. The plaintiff and defendant and two others, in 1836, became sureties for one Lancy, as a collector of taxes. In November, 1842, the defendant petitioned to be declared a bankrupt. An action on the bond was commenced against all the obligors, upon the 12th of December, 1842.

<p>The first of these two actions is a Writ of entry upon mortgage, made by the tenant to the demandant, to secure payment of his four promissory notes, of different pay-days.</p> <p>The other action is Assumpsit upon the note, last payable, which was for $1000.</p> <p>In both cases, the evidence was submitted to the consideration of the court, by whom judgments were to be entered, according to the legal rights of the parties. The facts which the court deduced from the evidence, are sufficiently stated in the opinions.</p>

<p>In an. action, for breach of warranty, in the conveyance of land, the defendant, by Ms pleadings, may bring the title into question.</p> <p>In such a suit, brought originally in the District Court, the plaintiff, if he prevail, is entitled to full costs, although the damage which he recovers, do net exceed twenty dollars; the court not being authorized to decide that the action, within the meaning of Rev. Stat. chap. 151, sect. 13, “should” have been brought before a justice of the peace.</p>

<p>There is a want of jurisdiction in the Judge of Probate of any county to grant administration upon the estate of a person, whose domicil, at the time of his decease, was within the State, but not within such county.</p> <p>Such want of jurisdiction, if it appear in the same record which exhibits the grant of administration, is decisive against the validity of the grant.</p> <p>In a case, presented for decision upon a statement of facts, without any stipulation that the decision should be influenced by the pleadings, the defendant is to have judgment, if the facts would verify any plea, which would be a bar to the action.</p> <p>In such a case, the pleadings do not require examination.</p>

Covenant broken. The opinion of the court sufficiently presents the facts. By agreement, the court was to determine the measure of damage. The damage to be assessed is the value of the land at the time of the eviction under the mortgage, with interest. 2 Greenl. on Ev. 242, 200; 8 Pick. 546, 547; 11 Pick. 462; 12 Mass. 304; 2 Green, N. Jersey, 48; 3 Metc. 81. It was not the plaintiff’s duty to redeem; he might well repose upon the covenants.

<p>Assumpsit, submitted upon facts agreed.</p> <p>The plaintiffs, as attorneys at law, had recovered a judgment and execution in favor of one Wilson, against the present defendants and another person, for $541,77, of which the costs were $18,14.</p> <p>To discharge that execution, the defendants paid to the plaintiffs, $100, and gave them their two notes, with a surety, each for $150, made payable to Has plaintiffs, one in one year, and the other in two years.</p> <p>At the same time, the defendants gave to the plaintiffs a memorandum, in which it was stipulated that the execution should be discharged, if they paid said notes within thirty days from their pay-days ; and that, if the notes should not be so paid, the defendants would pay to the plaintiffs the balance, $141,77, with interest. The first of the notes was not paid within the thirty" days from its pay-day; but it was paid before the second note became payable. The second note was paid prior to its pay-day.</p> <p>This suit is- brought upon said memorandum, because of the delay in the payment of the first note.</p> <p>The plaintiffs were payees of the notes. They had a lien on the judgment. They had power to discharge the judgment. That discharge was a good consideration for the notes. 14 Johns. 466 ; lb. 378; 3 Burr. 1673 ; 12 Wend. 381.</p> <p>On a contract, not under seal, made with an agent in his own name, for an undisclosed principal, either the principal or the agent may bring suit. 5 B. & Mol- 395. The condition as to prompt payment not having been performed by the defendants, their agreement to pay the balance of the execution became absolute. Time was of the essence of the contract. 2 Penn. 454. The promise involved no forfeiture. It was but a promise to pay a just and legal debt.</p> <p>Wilson’s judgment against the defendants is undischarged. Neither had the plaintiffs authority to discharge it, except upon full payment. There was, then, no consideration for the promise on which this suit is brought. The plaintiffs suggest their lien right. But they had received cash f 100; being four or five times the amount of the whole bill of cost.</p> <p>By accepting payment of the first note, the plaintiffs waived the delay in its payment. Money, not time, was the essential of the contract.</p>

Writ of entry, to recover a small lot, (20 by 50 feet,) of land. It is a part of a large tract formerly owned by one Greenleaf. Blake and Dix had owned a piece of land, extending northwardly to a point 100 rods and 6 inches from the road.

This case was before the court on a former occasion. 28 Maine, 554.

Writ of entry against Henry R. Soper. The demandant claimed title under a levy made upon an execution in his favor against this tenant, and William N. Soper. The tenant contended that the alleged levy was invalid. The case was submitted for nonsuit or default, as the rights of the parties may require. 1. The estate of each of the tenants in common should have been appraised separately.

<p>Exceptions from the District Court, Hathway, J. They were taken to that ruling, by which the plaintiffs’ book of account was excluded as evidence.</p>

<p>Where land is conveyed with covenants of general warranty, and, at the same time, is re-conveyed in mortgage, with like covenants of warranty, no action upon the covenants in the mortgage can be maintained by the mortgagee or his assignee.</p> <p>Thus, where such deeds were given, it was Held, that the assignee of the mortgagee could not recover, upon the mortgager’s covenants, for an eviction under a judgment for dower recovered against such assignee by the widow of the mortgagee.</p>

Replevin of a yoke of oxen, which had been attached as the property of Cyrus S. Clark, and placed by the officer in the hands of the defendant for safe keeping. When attached, they were found at the barn of one Tebbetts, who claimed to have a lien upon them for their keep. The creditor’s attorney paid that claim, and the amount was refunded to him by the attaching officer. The other material facts are stated in the opinion.

Debt, brought by an administrator de bonis non upon an unsatisfied judgment recovered by the original administrator against this defendant. objected: — 1st. That the action must be in the name of the former administrator or his executor or administrator. 2d. That the remedy is not by action of debt, but by scire facias. A. W. Paine, for the plaintiff, cited R. S. c. 113, § 18; 6 Mete. 197; 1 B. & C. 150; 8 Cowen, 333; 15 Mass. 374; 1 Chit, on PI. 15 ; 3 Rand. 287.

<p>By the R. S. c. 95, a widow who elects to take the provision made for her in her husband’s will, has no right also to dower in his estate, unless it plainly appear by the will to have been the testator’s intention that she should have both.</p> <p>When not entitled to both, she will be considered as accepting the provisions made in the will, unless, within six months from the probate of the will, she waives such provision.</p> <p>A delay of more than six months to make the election, is to be considered an acceptance of the provsions made for her in the will, and constitutes a bar to her right of dower.</p> <p>But if she “ be deprived of the provision made for her by the will,” she is entitled to dower, as if no such provision had been made. R. S. c. 95, section 14.</p> <p>To confer such right of dower, it is not necessary that there be a total privation of the provision made for her in the will. It is sufficient, if there be a privation of a substantial part of it.</p> <p>But whether, in case of a failure in the provision made for her by the will, she be entitled to dower, if, before the expiration of said six months, she knew of such failure, and made no election to claim the dower, qucere ?</p>

Petition for partition of real estate, representing that the petitioners were seized of undivided portions of the land “with, persons to the petitioners unknown.” Cyrus S. Clark was a part owner of the land and a resident of this State, at the time of filing the petition and during the whole pendency of the proceedings.

Assumpsit for use and occupation of the plaintiff’s land, and also for the third instalment of rent, payable under a lease of said land, made by one Southard to the defendant. The case was submitted to the court upon an agreed statement of the facts. 1. The land, which was leased to the defendant on the 10th of May, 1842, was redeemed on the 10th of Nov. 1842, and on the next day the defendant was notified to pay the rent to the plaintiff.

Entry.—Case for the plaintiff. In June, 1838, the defendant conveyed the land to one Wellington, by a deed recorded in the same month, in consideration of thee notes of $700 each, given by Wellington to him. In October, 1838, a- creditor of Wellington attached the land, and on obtaining judgment in 1846, levied it as the property of Wellington, and in 1847 released it to the plaintiff. Case for the defendant.

<p>Case. The plaintiffs shipped goods on board the schooner Brandywine, bound from Boston to Bangor. When arrived in the Penobscot river, the schooner anchored, one evening, in Bucksport eddy. While there at anchor, the next morning, she was run into and sunk by the steamer Penobscot, owned by the defendants. To recover for the damage thereby done to the plaintiffs’ goods, this action is brought. In relation to the extent of the damage, the parties submitted to the decision of referees, stipulating, however, that the submission should have no influence upon the question of the right of action. The referees estimated the plaintiff’s damage at $>779,13. At the trial, evidence was offered with a view to show, that the defendants had, from the year 1836, owned and occupied a wharf in Bucksport, for a steamboat landing ; that they had for all that period, been accustomed to pass to their wharf in a particular course or passage way, and had the right, whenever their occasion should require it, to pass along that passage, unimpeded by vessels at anchor there; that the schooner was lying in that passage way ; that so soon as she was discovered to be there, the officers and crew of the steamer used all due efforts, though unsuccessfully, to avoid the collision; that the collision occurred without any fault on their part, but wholly by the fault of the officers and crew of the schooner; that, on the part of the officers and crew of the schooner, there was a want of skill and care by which the collision was produced.</p> <p>On the other hand, evidence was offered to show, that by reason of adverse winds, and through injuries sustained by the schooner, in her sails and rigging, her officers and crew had lost the control of her; that only one sail was in any condition to be used, and that was much torn; that they could not proceed with her up the river, but were compelled to anchor at that spot for repair; that the steamer seasonably discovered her position, and might easily have avoided the collision; that the injury was occasioned wholly through the want of skill, care and prudence of the officers of the steamer ; and that the officers and crew of the schooner used all requisite skill, diligence and care.</p> <p>With a view to affect the question of damages, some evidence was offered, as to the character and soundness of the schooner, and as to the conduct of the master and others after the collision.</p> <p>The jury were instructed that all vessels, when navigating our rivers, have common and equal rights ; —</p> <p>that every person is bound so to use this right as not to infringe the rights of others ; —</p> <p>that, if there is a common and known channel in the river, or a common and known passage way to a wharf, no person ordinarily has a right to occupy it by anchoring his vessel upon it, or so near to it as to compel another vessel to encounter danger by departing from it; —</p> <p>that, however, in case of absolute necessity, a vessel may lawfully anchor there and remain there so long as the necessity exists, and no longer; —</p> <p>that, if the schooner had met misfortune, and the master could not use another sail, (than the one impaired,) and could not go to a safe place to anchor, then he would be justified in anchoring, and be entitled to remain as long as that necessity was upon him, and no longer; —</p> <p>that, in such case, however, it was the master’s duty to exercise reasonable skill, prudence and care to give others their just rights of navigation, and whether he performed that duty was a question, not of law for the court, but of fact for the jury ;</p> <p>that, if he could have stopped and anchored elsewhere, it was still for the jury to consider whether he performed his duty or not: —</p> <p>that, if the place of the schooner’s anchorage was in the common passage way of the steamboat since 1836, as contended by the defendants, the jury should determine whether navigators should be held to know that there was such passage way, and where it was; —</p> <p>that, if there was no necessity for anchoring there, or if the schooner remained longer than she should have done, that would not authorize neglect on the part of the steamer; that she would be bound to use ordinary care and skill, even if the master of the schooner was in the wrong; and that, if the collision happened through the want of such care and skill, on the part of the steamer, the defendants are liable; —</p> <p>that, (on the question of damages,) the character and soundness of the schooner and what took place in the conduct of the master and crew after the collision, it was unnecessary for the jury to consider, as the amount had been adjusted by referees on that point.</p> <p>The trial was before Shepley, C. J. The verdict was for the plaintiff; and the defendants excepted to the instructions given to the jury.</p> <p>1. The Brandywine had no right to anchor across the known track of the steamer, unless .> from absolute necessity.</p> <p>“ The party, who sets up necessity as an excuse for a violation of the statute, must make out the vis major under which he shelters himself, so as to leave no reasonable doubt of his innocence.” Brig Struggle v. TJ. S., 7 Cranch, 22.</p> <p>“ The necessity, which will excuse a violation of a law of trade, must be such as will produce a well grounded apprehension of the loss of vessel, cargo or crew on the mind, of a skilful mariner.” New York, 3 Wheat. 59.</p> <p>Now whether it be a law of trade or a law of way, or the legal rights of passage, it matters not, the necessity, in all cases, which will justify a violation of the law of the State and the legal rights of others, must be a case of stern, stringent and pressing necessity. The Scioto, Daveis’ R.; Strout v. Foster, 1 Pet. U. S. Rep. 89.</p> <p>As a matter of law or fact the plaintiffs were under no inevitable, unavoidable, urgent necessity of stopping in the track of the steamer, and thus of obstructing the right of navigation.</p> <p>It is not the abstract necessity of stopping — but of stopping in a particular place.</p> <p>The jury were instructed, that it ,was for them to determine if the schooner was conducted with a reasonable degree of care to give others a fair use of navigation.</p> <p>The position of the schooner, is in no respect a question of care, or of degree of care, but of necessity and of that alone.</p> <p>Reference by the court to care or degrees of care, served to distract the jury from the real issue before them.</p> <p>Another instruction to the jury was, that if the place of' the schooner’s anchorage was in the common track of the steamboat since 1836, it was for them to determine whether navigators should not know it.</p> <p>Whether or not this was the common track of the steamboat is a matter of fact, and for the jury.</p> <p>Whether or not navigators were bound to know it, if it had existed so long, is a question of law, and for the court.</p> <p>If the track of the steamer has been uniform since 1836, then, as matter of law, navigators were or were not bound to know that fact.</p> <p>But by their verdict, the jury must have decided that navigators were not bound to know it; then, unless this be the law, we are entitled to a new trial.</p> <p>A most material question of law is submitted in the alternative to the jury, and they have decided that the navigators are not bound to know the track of a steamboat, though it may be of fourteen years continuance.</p> <p>Another instruction was that, if the schooner met with misfortune, and the master could not use another sail, and could not go to a safe place to anchor, then he would be justified in anchoring, and would be entitled to remain as long as that necessity was upon him and no longer.</p> <p>This instruction was utterly disregarded by the jury. The evidence on the part of plaintiffs most completely and conclusively negatives such necessity.</p> <p>The jury were instructed that, if the master of the schooner could have stopped and anchored elsewhere, it was for them to consider whether he has performed his duty or not.</p> <p>This is erroneous.</p> <p>It is for the jury to determine “ if he could have stopped and anchored elsewhere ;” if he could, then the law applies itself to that state of facts, and fixes the duty of the master.</p> <p>The court do not determine what the duty of the master is, but submit it (to the jury.</p> <p>Suppose the jury found the fact to be, “ that he might have stopped and anchored elsewhere,” and that as matter of law, it was not his duty so to do ; it is obvious that while right, as to the fact, they are wrong as to the law.</p> <p>The law in the alternative was submitted to them, and the verdict shows it to have been erroneously settled by them.</p> <p>Another instruction was that, even if the schooner was under no necessity of anchoring where she did, or if she remained longer there than she should have done, that would not authorize neglect on the part of the steamer. She would be bound to use ordinary care and skill, even if the master of the schooner was in the wrong; and if the collision happened through the want of such care and skill on the part of the steamer, the defendants are liable.</p> <p>By this instruction, it is immaterial whether the plaintiff is in the right or wrong, is . guilty of the grossest negligence, or has used ordinary care. The same care, skill and prudence are required of the defendants, irrespective of the misconduct and negligence of the plaintiff.</p> <p>If this be the law, the plaintiff is relieved from proving ordinary care. He may be as negligent as he chooses, and thus, by his own misconduct, impose new and onerous duties upon the defendant, and by throwing them on the defendant, he may relieve himself from the obligations which the law imposes upon him. Railburn v. Paine, 19 Wend. 401.</p> <p>The true rule is, that to authorize a recovery, proof of ordinary care should be required, from the plaintiff. Here the Judge erroneously required that proof from the defendants.</p>

The appellant is guardian to a minor. In a guardianship account he presented the following claim : — “ 1847, Sept. 28th. To my own services and responsibility in the charge committed to me of the real estate of my ward, its careful and prudent management, and overseeing repairs and improvements for thee years next preceding this date, in addition to. usual commissions on personal assets, at §500, per year, §1500.” The Judge of Probate disallowed the claim.

The first suit was a libel, commenced in the Municipal Court, upon the impounding of a cow. One Hill was the impounder. Defendant was the pound keeper. The case comes into this court by appeal, from the judgment of the District Court, on agreed facts.

Assumpsit for a bill of goods sold. Plaintiff introduced letters from defendant, ordering certain goods to be sent by the rail cars, and then, together with his suppletory oath, introduced' his book, containing a charge of articles conforming to said order. On cross-examination, he testified .that he could not recollect to whom he delivered the goods, or in what manner they were sent. There was no other evidence.

Exceptions. Assumpsit for the price of mill logs. Plaintiff called one Averill, who testified that he was a surveyor, chosen by the town; that he surveyed and measured the logs, and made a record thereof. Defendant objected to witness’ testifying as to the quantity, and insisted that the survey book was the rightful evidence. The objection was overruled, and the witness testified upon that point. Defendant excepts. adverted to R. S. chap. 66, sect. 28, 29.

Assumpsit. Humbert had an interest in a lot of land. The plaintiff owned an adjoining lot. They arranged that one Bachelder should cut and haul timber from said land at a fixed rate per thousand feet. Bachelder entered upon the work but soon quit it.

Trespass for entering plaintiff’s land and cutting and removing ash trees. The case is submitted on agreed facts. Bell and Healy owned the land. Chamberlin was their agent. By a verbal contract, he sold to Dodge the growing ash timber. Bell and Healy afterwards conveyed the land' to Chapin, without any reservation in their deed.

<p>A promise, not in writing, made by a debtor, (in consideration of a pay-day extended,) that he will not take advantage of the statute of limitations, will not support an action brought upon the breach of such promise.</p>

<p>In a justice’s court, a denial to allow costs to the exact amount claimed* when a smaller amount is allowed, is not error.</p>

Writ of entry. General issue with claim for betterments, submitted to the court for nonsuit or default. Several deeds, with much other evidence, were offered as to title, boundaries and betterments. The plaintiffs claim under the will of one Billings.

<p>If mortgagees of personal property', when summoned as trustees to the mortgager, would rely upon a foreclosure of the mortgage, they must, in the disclosure, show what were the conditions of the mortgage, and state that a foreclosure had occurred.</p>

Entry, submitted for decision upon facts reported by a commissioner. A father conveyed the land to the defendant, his son, taking a bond, (with a mortgage for its performance,) for the maintenance of the father. While these deeds were unrecorded, and before any breach of the bond, the father deeded with general warranty to the plaintiff, who had knowledge of the former conveyance.

The bill prays that the defendant may be enjoined from selling a described lot of land, and for relief. It alleges in substance that the plaintiff is a poor man ; that he had owned the land; that he conveyed it to defendant upon an agreement that defendant should secure the value to the plaintiff by a mortgage ; that afterwards defendant fraudulently refused to re-convey the land, or pay for it, or give the mortgage, or any other security.

Assumpsit for money paid by plaintiff as surety on a replevin bond. Pillsbury attached goods on a writ against Stover Rines, who procured them to be receipted for. After demand, the receiptors were sued, and their goods were attached. The defendant replevied the last mentioned goods, furnishing the plaintiff and two other persons, as sureties on the replevin bond.

Exceptions from the District Court in Aroostook county. Assumpsit on an alleged contract to deliver to the plaintiff !í a certain large quantity of oats ; viz. 600 bushels.” The proof was of a contract for 1000 bushels, of which the defendant had delivered 207. The defendant’s counsel objected to the variance; but the Judge instructed the jury, that a contract to deliver 1000 bushels would sustain the declaration. relied on 2 Hill, 126.

Exceptions from the District Court, Hathaway, J. The defendant had been notified to attend the taking of a deposition at the office of Henry W. Fuller in Boston. It was in fact taken at the office of Henry H. Fuller in Boston. It was offered by the plaintiff, and objected to by defendant, for the foregoing reason, and also because the magistrate was not a commissioner, appointed by the Governor and Council of Maine, to take depositions.

Debt on poor debtor’s bond given by one Hills, as principal, and defendant, as surety. The verdict was for plaintiff, and defendant excepted.

<p>Action of debt for violation of the Act of August 7, 1846, “to restrict the sale of intoxicating drinks.” By the seventh section it is enacted that a defendant, appealing from the judgment of a justice of the peace, “ shall be held to advance the jury fees and all other fees that may arise after the appeal.”</p>

Assumpsit, submitted on agreed facts. The defendant, prior to December, 1842, owed the plaintiff fifty dollars on .account. On March 21, 1843, he was decreed a bankrupt on his own petition, dated Dec. 16, 1842, and obtained a final discharge Aug. 27, 1844. In 1845, the plaintiff’s agent presented him the bill for payment.

Replevin for mill logs. This action was withdrawn from the jury and submitted to the decision of the court upon legal questions, no stipulation being made as to the allowance of damages. The case was argued at the last law term and continued nisi.

Exceptions from the District Court, Hathaway, J. presiding. Indictment under the thirteenth section of the one hundred sixty-second chapter of the Revised Statutes, entitled “ Of malicious mischief,” &c., for wilfully and maliciously destroying certain shop tools, the property of one Dexter. There was evidence tending to show that the defendants, in the night time, broke open the shop, and thew the tools into the river.

Exceptions. Writ of entry. Plaintiff claimed under a levy against Fowles & al. Defendant claims under a conveyance from Fowles, made prior to the plaintiff’s attachment. To show the conveyance fraudulent, plaintiff read the deposition of Fowles. The defendant then called one Doane to show that Fowles had made a contradictory statement. To such proof the plaintiff objected, until Fowles, upon inquiry, should have opportunity to explain the statements which he had made.

Error, to reverse a judgment, which the defendant, resident in Boston, had recovered against the plaintiffs, on default, for $2807,72, damage, and $10,47, costs. The error assigned was that the writ had never been served on the plaintiffs. The defendant’s counsel at first appeared specially to take advantage of the service in this writ.

Exceptions. Trover for a lot of goods. In 1848, the plaintiffs consigned the goods to one James Getchell, with private verbal orders to sell at retail and for cash only. Before the delivery of the goods to him, Getchell paid the plaintiffs $35 toward them, and promised $15 more, but did not pay it. He gave what was intended for security, by an absolute deed of a store.

Exceptions from the District Court, Hathaway, J. presiding. Trover for a yoke of oxen. They were formerly the property of defendant. He was keeping them in the pasture of one Fuller. He proposed to sell them to Garland, at a fixed price, to be paid in hauling. Garland consented to buy, if he could get Calef to receive them of him upon a debt. Defendant gave Garland a writing, addressed to Fuller, to deliver the cattle.

<p>Replevin. General issue, with brief statement “ that the property was the property of the defendant, and not the property of the plaintiff.”</p> <p>Upon the question of ownership there was testimony on both sides. The Judge ruled that the burden was on the defendant to prove property in. himself. The verdict was for the plaintiff and the defendant excepts.</p> <p>The ruling was probably based on the authority of Green v. Dingley, 24 Maine, 135. There the brief statement alleged property in the defendant, but did not, as in this case, allege that it was not in the plaintiff.</p> <p>In Greenleaf on Evidence, vol. 2, sec. 563, (2d edition,) the author says, “ If the defendant, besides the plea of non cepit, also pleads property, either in himself or a stranger, and traverse the right of the plaintiff, which he may do, with an avowry of the taking, the material inquiry is as to the property of the plaintiff, which' the plaintiff must be prepared to prove, the onus probandi of this issue being on him ; for if the former issue is found for him, but the latter is either not found at all, or is found for the defendant, the plaintiff cannot have judgment,” and to sustain the doctrine cites some twenty authorities.</p> <p>The case of Dillingham v. Smith, decided since the trial, is deemed conclusive. 30 Maine, 370.</p> <p>The general issue admits the plaintiff’s property. The brief statement does not limit or qualify the admission.</p> <p>The sole office of a brief statement, filed under R. S. c. 115, § 18, is to give notice of that special, substantive matter, which defendant proposes to prove.</p> <p>A denial of any allegation in the writ is not notice of special matter to be given in evidence, and cannot properly be inserted in such brief statement.</p> <p>Such traverse, if inserted, is mere surplusage, and is of no force or effect.</p> <p>If defendant would traverse any allegation of the writ, which is not traversed by pleading the general issue, he must plead specially.</p> <p>The act of 1831, abolishing special pleading, 'was repealed at the revision of the statautes in 1841.</p> <p>A defendant may now file a special plea at common law, without pleading the general issue ; or he may, under the statute, plead the general issue with as many special pleas as he chooses ; or he may, in proper cases, plead the general issue, and give in evidence special matter with a brief statement.</p> <p>The prohibitory act of 1831 being repealed, all .decisions, and rules of practice, having their origin in such prohibition, are no longer in force.</p> <p>If defendant, now, by filing a brief statement, fails to bring the matter to such an issue as he might have raised by a special plea, he alone is in fault, for having adopted that mode of pleading, and must bear his loss.</p> <p>The brief statement in Potter v. Tit comb, 16 Maine, 423, would not be allowed under our present statute : nor would the counter brief statement, there filed for the purpose of bringing the matters to issue ; as the only province of a counter brief statement, under the present statute, is to state new matter to be given in evidence in avoidance.</p> <p>The only matter put in issue by the plea in this case, was the taking, and that was all plaintiff was bound to prove. Greene v. Dingley, 24 Maine, 137.</p> <p>The only matter in relation to which defendant could adduce proof was, that the property was the property of defendant; for that is the only matter contained in his brief statement. Washburn v. Mosely, 9 Shepl. 163.</p> <p>The New Hampshire statute of 1831, is similar to ours. In Cocheco Co. v. Whittier, 10 N. H. 305, it was decided that the filing of a brief statement does not change the nature of the general issue, or in any way limit the admissions defendant makes by filing that plea.</p> <p>Under the New York statute, which seems to be similar to ours, the brief statement seems' to be regarded simply as a notice of new facts to be proved. 20 Johns. 746, 749.</p> <p>In 13 Johns. 329, and in 1 Wend. 70, it was decided that a brief statement cannot be filed with a plea of nul tiel record; although their statute does not seem, like ours, in express terms to confine the brief statement to cases where an issue is joined to the country.</p> <p>The brief statement is simply notice of matter which defendant proposes to prove. He may prove it or not, as he chooses. The onus is upon him. The plaintiff is only called upon to rebut.</p>

Exceptions from the District Court. Indictment, alleging that the defendants conspired to charge one Levi R. Gray, and cause him to be impleaded of an offence, of which he was not guilty.

This was a writ of entry. Demandant claims title under a sale by the assignee of the estate of the defendant, he having been decreed, June 13, 1843, to be a bankrupt, upon his own… Held: that the mortgage passed under and by virtue of the devise. The mortgage and note then being transferred to the tenant, after he was declared a bankrupt, and after he had parted with his equity, he became in fact the motgagee, and by force of the will inherited the rights of the testator.

The bill alleges, that one Amos Patten conveyed to Joseph Whittier, (defendant) certain premises described,- — that said premises were purchased by Whittier as trustee for James H. Perkins & J. P. Wendell, eo-partners composing the firm of Perkins & Wendell; that afterwards said firm was dissolved, and Perkins transferred all his interest in the premises and other assets to Wendell, who carried on business under the name of J. P. Wendell & Co ; — that Whittier became seized…

<p>Trover for five hundred and twenty-one mill logs, which the plaintiff claims to hold under a lien, according to an agreement with the owner for driving the same. The case was submitted to the court upon the depositions of Norris and of Alexander with some other agreed facts.</p> <p>Alexander owned the logs. He employed the plaintiff to drive them to Yeazie’s boom, at seventy-five cents per thous- and feet, and in the contract, which was in writing, gave to the plaintiff a lien on the logs, to secure the pay for driving. On the back of that contract, was an assignment of it by the plaintiff to H. O. & S. H. Hussey.</p> <p>The plaintiff drove the logs according to the contract, and has received no pay.</p> <p>'After the logs were at Yeazie’s boom, Alexander sold the logs to the defendant, who manufactured and sold them, and paid Alexander for them.</p> <p>There was a statement in one of the depositions, slightly tending to show that the plaintiff was present at the sale by Alexander to the defendant. The other deposition denied that fact.</p> <p>A further exposition of facts will appear in the opinion.</p>

Writ of entry. The land borders upon the conventional line of boundary, between the United States and the Province of New Brunswick,… Held: that the words respecting titles in the Spanish treaty, “ shall remain ratified and confirmed,” were not a contract, to be executed in futuro, but as operating per se, without legislative intervention. The words in the treaty of Washington, “ shall be held valid, ratified and confirmed,” are not less indicative of a title executed.

Assumpsit upon thee negotiable notes, given by the defendant to the proprietors of the town of Baileyville, indorsed by “ Samuel Kelly, agent.” Whether Kelly had authority so to indorse the notes as to give to the plaintiffs a right to maintain this action upon them, is the only question in the case.

Assumpsit. Property, both real and personal, was attached on the writ. The defendant was defaulted. Certain subsequently attaching creditors defended. In defence, Rendol Whidden was called as a witness. Being objected to, he stated on the voir dire, that he was surety in two replevin bonds, in virtue of which the same personal property was replevied from the attaching officer.

<p>Trespass against the sheriff for taking and selling, upon mesne process, certain goods which the plaintiffs claim to hold under a mortgage from the debtors in said suit.</p> <p>The evidence was submitted to the court, with power to draw inferences as a jury might.</p> <p>It was shown that the attachment was made on the 2d of July, 1847, upon a writ in favor of Charles Tappan, and that the property was placed for safe keeping in the hands of one Clapp, as bailee to the attaching officer. The mortgage was made on the 10th of the same July. The value of the property exceeded thirty dollars. Whether the doings of the town clerk on the 13th of July constituted a valid recording of the mortgage, was a question much discussed. But by the adjudication of the court upon the facts proved by the evidence, that question became immaterial. Clapp continued in possession until the morning of the 14th of July. Whether from that time forward he became the keeper for the mortgagees or continued as keeper for the attaching officer only, was another question strenuously controverted.</p> <p>In the afternoon of said 14th of July, the officer returned an attachment of the goods on a writ in favor of the Canal Bank, and subsequently upon a number of other writs, but all subject to Tappan’s attachment.</p> <p>On the 5th of August, Clapp surrendered the custody of the goods to the officer, induced by his theats to take forcible possession, and by a contract of indemnity given by the officer and by the attorney of the Canal Bank.</p> <p>On the 18th of August the debt due to Tappan was paid by the mortgagees. By consent of the Canal Bank and other subsequently attaching creditors, and also of said debtors, the property was sold at auction by the officer on the 8th of September, 1847.</p> <p>This suit is brought by the thee mortgagees. The. condition of the mortgage was, in substance, that whereas said mortgagees had at various times indorsed for the mortgagers certain and various notes, drafts and checks, the mortgage conveyance was to be void, if the mortgagers should protect the mortgagees against the said indorsements.</p> <p>It turned out, in fact, that each of the mortgagees was indorser upon some of the mortgagers’ paper, but no two of them were upon any one piece of such paper.</p> <p>The defendants contended, thereupon, that the mortgage was not a security for any but joint liabilities, and that the action, being in the- name of the mortgagees jointly, cannot be sustained.</p> <p>A more detailed exhibit of the facts is contained in the opinion.</p>

Assumpsit commenced before a justice of the peace, and brought to this court by an appeal from a judgment, rendered by the District Court upon an agreed statement of facts.

The plaintiff is administrator of Asa Smith’s estate. The bill sets forth, that the intestate was owner of certain real estate, which he conveyed, without any consideration, to the respondent; that it was the agreement of the parties that the respondent should hold the same in trust, for the use of the intestate ; and that the estate has been represented insolvent. It thereupon prays that a re-conveyance may be decreed.

Assumpsit, brought April 38, 1849. Certain persons were decreed to be bankrupts in 1842. The plaintiff was assignee of their estate. In said capacity he sold to one Bolkcom a demand against Stephenson, since deceased. The demand had been in the hands of Mr. Lowell, and prior to said sale, Mr. Lowell had collected the money ; but he declined to pay it over, except to Stephenson’s administrator, saying the demand never belonged to the bankrupt’s estate.

<p>A mortgager of land, whose right of redeeming has been sold on execution, has no rights in the land, until redeemed from the sale.</p> <p>His acts upon it may be treated as trespasses.</p> <p>Before the redemption, whether he be in possession or not, he can maintain no action of trespass quare against the purchaser for acts done upon the land.</p>

<p>Assumpsit upon an account annexed, for services in surveying lumber. The trial was had in the District Court before Hathaway, J.</p> <p>It was admitted, that the plaintiff was a legally qualified surveyor. In support of the account, he offered a book, with his suppletory oath, to which the defendants objected. On being sworn, he testified, that he kept no day-book, or any other book than this, containing his charges for surveying ; that the entries were in his handwriting, and made at the dates thereof; and, that he performed the services in surveying as appeared on the book.</p> <p>On cross-examination he stated, that it was a survey book ; that he entered in it names of the seller and of the buyer of the lumber which he surveyed ; that from this book he made all his bills for his services in surveying ; that he looked first to the seller for his pay, and if he could not get it from him, he looked to the buyer. The item in the book, which the plaintiff relied upon, was an entry of a specified quantity of lumber surveyed, stating the day, and the seller, and also naming the defendants as the buyers. The ]5rice carried out was at a higher rate than the statute allows for surveying.</p> <p>There was no other evidence to show, that the service was performed, or for whom, or at whose request it was performed.</p> <p>The Judge admitted the book and the testimony, and instructed the jury, “ that the book was evidence of the amount due from defendants to plaintiff for surveying as charged in the plaintiff ’s account, and, that they should assess the damages for the plaintiff, (if they believed his testimony,) at the statute price for surveying so much lumber as should appear by said book to have been sold to said defendants which was surveyed by plaintiff, «deducting credits on plaintiff’s bill of particulars.”</p> <p>The jury found a verdict for the plaintiff.</p> <p>To these rulings and instructions defendants excepted.</p> <p>The survey book was inadmissible. It was not a book of account. It contained no charges against any one. The entry was not made for the purpose of charging any one. See Greenl. Ev. vol. 1, <§> 140. It was merely a memorandum, intended for the convenience of parties actually interested. It cannot be evidence to show who the parties were.</p> <p>The law does not require such a book to be kept. It therefore has none of the elements of a record. Between other parties, it might be used to refresh the surveyor’s memory, if he should be called as a witness. To use it as testimony for the surveyor himself, is a perversion of its import and design. There is no proof that the defendant ever purchased the lumber or heard of it, till called to answer in this suit.</p> <p>It is necessity alone which upholds the practice of allowing a person to testify in his own behalf. At the expense of much legal principle, the rule has already been pressed to the extreme point. It needs contraction railer than expansion. In a case like this, there can be no necessity to admit the plaintiff’s mere book survey.</p> <p>The suppletory oath, as it was called, fell far short of sufficient testimony. It did not state, that he did the service for the defendants, or that they knew of it or assented to, or that they ever purchased the lumber or knew of its existence. The entry on the book might have been made, and doubtless was, at the suggestion of the seller alone. Plaintiff knows his debtor by hearsay only. He testified that his first call is upon the seller, and he does not say that he has not been paid. See Greenl. Ev. voi. 1, § 140, note and cases cited. In case of goods sold, the seller, if he rely on his book, must testify to a delivery to the defendant. If the delivery be to an agent, he must prove the agency by testimony other than his own. By analogy, ought there not to be, by plaintiff’s testimony or otherwise, some proof that the defendants had some sort of interest or knowledge about this lumber.</p> <p>The claim, in its nature, admits of better evidence. If the plaintiff claim of the seller, he may call the buyer; if of the buyer, he may call the seller.</p> <p>That instruction to the jury was erroneous, which stated “ that the book was evidence of the amount due from the defendants to the plaintiff for surveying as charged in the plaintiff’s account.” At most, it could be evidence only of the amount of labor performed, no price being charged thereon.</p> <p>That instruction was also erroneous, which directed the jury to “assess damage, at the statute price, for surveying so much lumber as should appear by said book to have been sold to the defendants.” By that instruction, the book is made evidence of the sale.</p> <p>The plaintiff invokes the statute, which gives the surveyor a right to recover of the buyer. By the book alone, even unsupported by his oath in that particular, he is allowed to prove that these defendants were the buyers. This must be erroneous.</p>

Writ of entry, bringing into question the boundaries of a large tract of land, with a claim of $3000, for rents and profits. The deed, under which the demandant claimed, conveyed “ the township of Crawford, bounded on the north six miles by townships No. 21 and 16 ; on the east six miles by townships No. 15 and 16; on the south six miles by township No. 19, and on the west six miles by townships No. 25 and 26, containing 23,040 acres,” excepting certain specified lots.

Assumpsit on book account for $154,74, being the amount which was originally due. The defendant offered the following receipt, signed by the plaintiffs, viz., “New York, 4 Feb’y, 1848, Eec’d of A. S. Herman eighty dollars, which is in full for our demand against J. Oppenheimer of Maine, for $154,74, and we agree to discharge said Oppenheimer therefrom upon the payment of the costs incurred therein.” The costs were paid by the defendant prior to the entry of the action.

<p>"When, lands belonging to the wife have been sold by an authorized agent, the money received therefor, in the hands of the agent, belongs to the husband, and, after his death, may be received by his administrator.</p> <p>Neither at law or equity, can the widow niaintain process against the agent to recover such money.</p> <p>Interest on the balance of an account stated, is recoverable from the date of the settlement.</p>

Assumpsit. Plea, general issue and limitation. The facts were agreed, upon which the court should enter judgment as the law requires. The defendant’s intestate was clerk and treasurer of the Academy from Aug. 1831, to his death in April, 1848, having the custody of its securities, books and papers. It was one of its by-laws, that no part of the funds should be loaned by the treasurer, except on mortgage of real estate, of double the value of the sum loaned.

This is an appeal from a decree of the Judge of Probate, allowing the will of Bangs Doane. The testator had several children, living at the time of his decease, of whom the appellant is one. No devise or legacy was made to the appellant. There was no evidence to show whether the omission was intentional or occasioned by mistake, or to show that the appellant had had an equal proportion of the testator’s property bestowed upon him, during the lifetime of the testator.

Assumpsit, tried before Tenney, J. The plaintiff made a claim upon an account against the thee defendants, who are alleged to be co-partners.

<p>Case, tried before Wells, J., for damage through a defect in the highway. It consisted in a sudden or abrupt deepening of the cart-rut, which was, at the time of the accident, covered by water.</p> <p>One Dunham and one Hinkley, inhabitants of Ellsworth, testified that they had known of the defect a week before the accident.</p> <p>The defendants proved that the cash tax of Ellsworth, for that year, was over $5000; that Dunham was taxed but $2,60, and Hinkley was not taxed.</p> <p>The jury were instructed that, if the witnesses were believed, notice to the defendants was sufficiently proved; and that among the items of damage they should include the bodily pain, suffered by the plaintiff. The defendants excepted to these rulings.</p> <p>1. The case does not show the witnesses to have been “ principal men, or men of substance.” ' Lobdell v. New Bed-ford, 1 Mass. 153; Springer v. Bowdoinham, 7 Maine, 442; French v. Brunswick, 5 Maine, 29 ; Reed v. Northfield, 13 Pick. 94.</p> <p>In all those cases the defects were open and visible. In this case the defect was a secret one. It was a hole in a rut, filled with water, with nothing to distinguish it from other parts of the way, or from an ordinary rut. It could be seen only by searching for it.</p> <p>Can there be an implied notice of a latent defect ? Latent defects, of however long continuance, do not carry notice.</p> <p>What is reasonable notice, is a question for the court.</p> <p>The jury found a matter of law only.</p> <p>2. The instruction, that the jury should compensate for bodily pain, was erroneous.</p> <p>Tenney, J. — It has been settled, in Verrill v. Minot, (31 Maine, 299,) that such an allowance is proper.</p> <p>Herbert. — In that case, was the item of suffering charged for in the declaration ? The tendency of such a doctrine would be to make drivers careless. There can be no standard for estimating such damage. The rule would introduce quite too much looseness into legal proceedings.</p>

Assumpsit on account annexed, and quantum meruit for two months labor. The contract was, that the plaintiff “ should labor for the defendant six months at $13 per month, if they could agree.” The plaintiff worked two months and then quit. For that labor, this suit is brought.

Assumpsit, upon an alleged breach of a contract of marriage. In order to prove the contract, the plaintiff proved tentions by the defendant to her in 1847 and 1848. The defendant denied having entered into such a contract. He also contended that, if such a contract should be proved, the plaintiff, by committing fornication with other men in August, 1847, had absolved him from the obligation to marry her. Evidence upon these points was presented to the jury.

These actions were pending in 1849 in this court, and were referred, by a written agreement under seal, to two individuals. In the agreement to refer, was a stipulation that the actions in court should be entered “ neither party.” At the next regular term of the court, in July, A. D. 1849, those entries were made.

<p>Complaint for an assault and battery committed upon Geo. N. Black, 15th Nov. 1849. The case comes into this court by appeal. It appeared, that, two years before the alleged assault and battery, Black contracted to purchase a strip of land on which to build a road from the public highway to his mill; that he built the road, and, two months prior to the assault, put a gate across it, which he usually kept locked up in the niglit, and which was generally left open in the daytime ; that he has ever since been in possession of said road; that he received his title deed of the land on which the road was built in September, 1849, and that defendant purchased the land adjacent to the road, upon which it is bounded on one entire side, and received his deed of it in April, 1849, five months prior to the execution of Black’s deed, both of which are from the same grantor. The defendant contends that, by virtue of his deed, he has an easement in the road.</p> <p>The defendant attempted to pass upon the road with his team, and Black prevented him; whereupon the defendant struck him with an iron crow bar. As to the severity of the blow, there was some slight conflict of testimony.</p> <p>Upon this state of facts, the defendant’s counsel “ requested the Judge to instruct the jury as to his right of way, in virtue of his deed.”</p> <p>He also contended, that, as the defendant had a right of way, he used no greater degree of force than was lawful.</p> <p>The Judge refused to give any instructions as to the right of way, but did instruct the jury, that whether defendant had or had not a right of way, the blow with such a weapon, inflicted upon Black, could be justified only in necessary self-defence.</p> <p>The verdict was against the defendant, and he filed exceptions.</p> <p>read a document of great length. The legal points which it presented and urged were the following : —</p> <p>1. The Judge ought, when requested, to have instructed the jury, that the defendant had an easement in the road, and therefore a right to pass upon it. 3d vol. 3d ed. Kent’s Com. 433, and onward; 2d vol. 2d ed. Hilliard’s Ab. 349, and notes; 17 Mass. 413; 4 Mass. 110; 21 Pick. 292; 1 N. Y. Digest, 303, and citations.</p> <p>The defendant’s deed gave him a right of way upon said road.</p> <p>When he purchased, his grantor owned the whole, The defendant had no other way to get to the public road. He had therefore, a right of way by necessity.</p> <p>But, further, he owned one half of the land, covered by the road. “ A grant of land, bounded on a highway, carries the fee in the highway to the centre of it, if the grantor, at the time, owned to the centre, and there be ho words to indicate a different intention.” Johnson v. Anderson, 18 Maine, 76.</p> <p>2. The Judge erred in instructing the jury, that whether defendant had or had not an easement in the way, he had no right to strike Black such a blow, as testified to by the government’s witnesses, unless necessary for self-defence, without some allusion to the conflicting and modifying evidence of the other witnesses. Greenleaf v. Booth, 9 Peters, 292; Pierce v. Whitney, 22 Maine, 113; Lapish v. Wells, 6 Maine, 175.</p> <p>The character of the rest of the argument may be inferred from the opening part of the opinion given by the court.</p> <p>The defendant had a legal way upon the road, both by his conveyance and also by necessity.</p> <p>The Judge ruled that all, which the defendant had a right to do, was to defend himself. This ruling is believed to be erroneous. Where one is using his lawful right, he may exert force enough to repel resistance to his actions.</p> <p>The case was submitted by the government without argument.</p>

Assumpsit on a promissory note, with set-off filed. The writ is dated in March, 1849. The set-off contained an item of fifty dollars, for money had and received. Defendant moved to amend his set-off, by describing a note of hand payable by plaintiff to defendant, or order, and claiming to prove the same under charge for money had and received. The court allowed the amendment, the plaintiff’s counsel objecting.

Writ or entry. Many title deeds, pertaining to the demanded premises, were introduced by the parties. But the decision of the court brought but two of them into particular examination. 1. A deed from Daniel F. Harding to the demandant, dated, acknowledged and rec'orded in 1847. 2. A deed from the same Daniel F. Harding to Walter Blake, dated and acknowledged in 1840, and recorded in 1848, Under this deed the tenant deraigned title in himself. .

Exceptions, from the District Court. Assumpsit, upon a note of hand, signed by the defendant, and payable to the treasurer of the town, for the sum of thirty dollars, dated Dec. 10, 1846.

<p>Bill in equity.</p> <p>Its allegations, so far as they called for the action of the court in making up their opinion, were substantially that, in-July, 1835, upon the defendant’s assurance that he was the owner of a described lot of land, upon which were a stream of water and an old saw-mill, the plaintiff undertook to purchase the same, and to pay $200, cash in hand, and the balance in seven equal annual payments ; the price of the- land to be ascertained by the award of two disinterested persons, one of whom was to be appointed by the defendant, and the other by the plaintiff; that the plaintiff appointed one Prescott, and that the defendant appointed Albert Cargill, and that the said referees set the land at $980, being twice its just value ; that, not suspecting any interest in said Cargill or any fraud in the defendant, he, the plaintiff, paid to the defendant the said $200, and gave his seven notes for the balance, as previously agreed; and took therefor the defendant’s bond to convey, when the notes should be paid; that he made payments, including said $200, to the amount of $591, toward said purchase; that he cleared out the stream, and erected upon the lot a new mill, which, with his other improvements, amounted to $2000; that he occupied the land till 1841, when the defendant took possession, and has since retained the premises, including all the erections and improvements made by the plaintiff, and has received rents and profits therefor at the rate of $200 per year; that Cargill, the said appraiser, instead of being a disinterested man, (as was represented by the defendant, and believed by the plaintiff,) was in fact the owner of a large part of the premises, including the site of the mill; that the residue of the land was owned by the heirs of one Pierce, and the defendant had no title whatever to any part of the lot; that the defendant had full knowledge of said ownerships, and yet, intending to cheat the plaintiff, took the said $200 and said notes, and gave said bond, though knowing he had no title to the land ; that, within the said seven years, the plaintiff offered the defendant to pay him the amount due upon said notes, if the defendant would procure a-title to be made to the plaintiff; and afterwards, on the 26th of April, 1847, the plaintiff made a demand upon the defendant for the possession of the premises, and asked for an account of the rents and profits, and offered to pay what the balance might be, if any; all of which was refused by the defendant, who denied that the plaintiff had any right or interest in the subject-matter.</p> <p>The prayer of the bill is, that said defendant make answer on oath, &c., and that the said contract be declared void - by reason of the defendant’s fraud and want of title; that the outstanding notes be canceled, and the purchase money, so far as the same had been paid, be refunded, and the amount, expended by the plaintiff in making the mill and other improvements, with the net rents and profits, be paid to the plaintiff; and that other suitable relief be given.</p> <p>The substance of the answer, so far as the same became material to the decision, is stated in the opinion.</p>

Trespass. The verdict was for the defendant, and the , plaintiff moves to set it aside : — 1. Because rendered against the weight of evidence. 2. Because one of the jurors, who tried the cause and rendered the verdict, was a first cousin to the defendant’s wife, which affinity was not known to the plaintiff, until after the rendition of the verdict.

Assumpsit, upon a promissory note of $300, brought against the maker. Documentary and parole evidence was offered for the adjudication of the court, who were, by agreement of parties, to render judgment upon nonsuit or default, as the legal right should require. So far as any facts were considered by the court as proved, and deemed material, they are adverted to, and the effect of them presented in the decision. 1.

A ssumpsit, upon four promissory notes made to the plaintiff’s intestate by the defendant. The defendant read in evidence a paper dated subsequently to the giving of the notes, and purporting to be a receipt of one dollar from the defendant, “ in full of all demands,” and to be signed by the intestate. It was dated March 12, 1847. As to the genuineness of the receipt evidence was offered by both parties.

Assumpsit, for a quantity of pine fish barrel staves. The defence was that the sale was illegal and void by the R. S. chap. 66, sec. 20, because the staves had not been culled or surveyed. Tenney, J., ruled that the prohibitions of that section of the statute do not apply to staves of this description. Yerdict for plaintiff, aud exceptions by defendant.

Replevin for the schooner Tamerlane, her tackel and apparel. The evidence was submitted to the court for the ascertainment of the facts of the case, and for a judicial decision thereupon. To show what the facts were found to be, reference is made to the decision. The defendant was the mere servant of the officer, and as such removable at his pleasure j and after removal could have no rightful possession of the property.

Trespass quare. The defendant entered upon the plaintiff’s land, and there excavated a ditch about fifteen rods long and one to two feet deep, and thee to four feet wide. This was done in order to turn the water from the highway, where it was flowing from the side-hill above. The defendant, by brief statement, justified as a surveyor of highways. The case was submitted to the court for a nonsuit or default, according to legal rights.

Writ of entry. The trial was before Tenney, J. The demandant introduced a deed'of quitclaim to himself from Nailaniel Moncey, wherein the premises are described, and are also stated to be the farm on which the grantor lived, except a reservation to said grantor and his wife, of the use, occupation and control of said premises during their natural lives “for their maintenance and support.” The demandant also introduced an unsealed paper, dated September 12, 1847, made by said…

A message was sent by the jury 'to the Judge, that they were not likely to agree upon a verdict and the officer, under direction of the Judge, opened the door and apprised the jury that they were called into court. It was then said by one of the jury that they could probably agree, and the Judge, on being notified of it, recalled the order.

<p>If an officer, having a writ for service, offer the summons to the defendant, who refuses to receive it, he may rightfully return that he delivered the summons, or he may return the facts specifically, and they will he held as a delivery.</p>

Debt on a poor debtor’s relief-bond. The debtors took the oath prescribed by the statute before' two justices of the peace and quorum, one of whom was their^ father. He was selected by them, and was objected to by the plaintiff. If that proceeding constitutes a defence, the plaintiff is to be nonsuited. Otherwise the defendant is to be defaulted, with damages according to law, to be adjudged by the court. One of the justices was interested.

This is a libel for divorce from the bonds of matrimony. If in the opinion of the court the libelant is entitled to such a divorce, supposing all the facts alleged are proved, then the case is to stand for trial. If not, the libel is to be dismissed. 1. The statute of 1849, relating to divorces, repeals all that portion of the Revised Statutes, relative to causes for divorce.

Bill in equity, alleging that this plaintiff was indebted to Nailaniel Wilson upon two notes of hand secured by separate mortgages of real estate; one of said notes dated in 1845, for $1000, at two per cent, interest, the payment not to be called for under ten years ; the other dated in 1846, for $175 in ten years, with annual interest: — Also further alleging that the last will of said Wilson, which has been duly approved, after making certain specific legacies, gave and…

Bill in equity. This is the case in which an injunction was ordered, as reported in vol. 31, page 360. It now comes up for an adjudication upon the general merits. The substance of the bill is presented in the former report. The following facts were agreed by the parties: — Before the passage of the Act set forth in the bill, the Penobscot river above Old town had never been navigated.

Indictment, for the murder of one Beringera D. Caswell. It contained four counts. The third count charged, in substance, that at, on, &c. Beringera D. Caswell was pregnant and quick with child, and that the defendant, intending to procure an abortion, did [in a certain described mode,] apply to the person of said Beringera a certain [described] metallic instrument, whereby he caused her to become sick and to die.

Exceptions from the District Court. Case. The defendant, by consent of the plaintiff, attempted some treatment of the plaintiff’s horse in order to increase its value. The result was unfavorable, and in consequence of it the horse died. After the injury, the plaintiff sent for a horse-doctor, and expended time and money, in attempting a cure.

Exceptions from the District Court. Debt, upon the statute of 1846, chap. 105, to recover a penalty for a sale by the defendant, of prohibited liquor, with-. out license. The plaintiff’s evidence was in substance, that, at the defendant’s place of business, one Sargent called upon the defendant for a pint of brandy, telling the defendant he had no money then, but promising to pay for it; and that the defendant furnished it, but was never paid for it.

Exceptions from the District Court, Cole, J. Assumpsit on the money counts. Hayes & Cogswell received a note of $4560, payable in five years with interest annually, and signed by the plaintiff, and the defendant with two other persons, and gave to the signers a bond to convey to them a tract of timber land, if the note should be paid.

<p>Process to recover damage for flowing the complainants’ land by a mill-dam. The respondent pleaded by brief statement, that he and those under whom he claims, had, for I more than twenty years, maintained a dam upon the same “place,” upon which stands the dam now complained of, to as great a height, &c.</p> <p>Evidence upon that question was submitted to the jury.</p> <p>The facts proved, so far as necessary to be presented, appear in the opinion given by the court. .</p> <p>Shepley, C. J. instructed the jury that, if the respondent’s dam was erected upon the same site, of the ancient dam, (and if, in other respects, the prescription was maintained,) the defence was established.</p> <p>The verdict was for the respondent. The complainants excepted.</p> <p>The pleading was, that the dam was erected upon the same place of the ancient dam. This allegation it was incumbent upon the respondent to prove. 1 Greenl. Ev. >§> 58, 63, 69, 71; 2 Greenl. Ev. § 539 ; 2 Stark. Ev. (Boston ed. in 2 vols.) 667; 3 Kent, 547.</p> <p>The right acquired by prescription extends no further than to the extent of the user, out of which the right springs.</p> <p>The instruction to the jury was, that the respondent is protected, if his dam was, (not upon the same place, but,) upon the same site of the ancient one. The word “ site” is of broader import than the word “place." It gave to the respondent a protection, though his present dam may be at a great distance from the former one. "We submit that this ruling was erroneous.</p> <p>cited 1 Dane’s Ab. 529 ; Richards v. Squibb, 2 Esp. 26; Cottel v. Luttrel, 4 Co. 86 ; King v. Tiffany, 9 Conn. 167; Angell on Water Courses, 170; Cooper v. Barker, 3 Taunt. 99; Cary v. Daniels, 8 Mete. 467 ; Branch v. Doane, — Conn. 402; Buddington v. Bradley, 16 Conn. 213; Bealy v. Shaw, 6 East, 208; Davis v. Brigham, 29 Maine, 402; Hatch v. Dwight, 17 Mass. 269; 15 Johns. 213, per Thompson, C. J.; 13- Johns. 212, per Platt, J.</p> <p>There was also a motion for a new trial: —</p> <p>1. Because the verdict was against the evidence given on the trial.</p> <p>2. Because the verdict was not only without any evidence to support it, but was contrary to and against the uncontradicted evidence, introduced .by the respondent himself at the trial.</p> <p>3. Because the verdict was against the Aveight of evidence.</p> <p>4. Because the verdict was against law.</p> <p>5. Because the verdict was against the law, as stated to the jury by the presiding Judge at the trial.</p>

Exceptions from the District Court, Cole, J. Debt, to recover a penalty, upon the charge, that the defendant, at Biddeford, did presume to travel, and did travel from place to place for the purpose of vending goods, wares, &c. without license. The defendant contended, that the penalty is not incurred by traveling for such purpose in a single town.

Writ of entry.—The demandant conveyed the premises by a conditional deed to Jos. L. Getchell, who afterwards conveyed the same by warranty deed to the tenant in 1842. The demandant, in 1848, re-entered for condition broken. The tenant introduces a deed of release made by the demandant to him in 1845, purporting to be in consideration of one dollar.

Writ of entry, for a lot of land in Portland. Andrew S. Marwick owned the demanded premises, and by his will, approved in 1833, devised the same to his wife, Elizabeth, upon condition that she should support his mother, Mrs. Lydia Marwick, (who was his heir-at-law,) in a comfortable and suitable manner. The demandant derives title under a conveyance from said Elizabeth, made in 1834.

<p>Petition for an injunction, alleging that the plaintiff now owns and possesses, and for the last fifty years, has owned and possessed a twenty-eight acre lot of land, upon which there is growing a large quantity of valuable wood and timber ; — that one of the defendants has been committing strip and waste thereon, without any right or title, and without the consent and against the will of the plaintiff, by cutting and hauling away the wood and timber, for which the plaintiff has instituted against him an action of trespass, now pending ; — that both the defendants have expressed a determination, and made preparations, to commit further strip and waste, in the same way, against the' will of the plaintiff; — that such strip and waste would be to the plaintiff an injury which could not well be compensated by any damages, which he would be likely to recover ; — that the defendants are men of no pecuniary responsibility ; — and that, if the strip and waste be persisted in, the plaintiff must be without remedy.</p> <p>Wherefore the plaintiff prays that the defendants be required to set forth, upon oath, what amount of wood and timber they have, either jointly or severally, carried away, or caused to be carried away, from' the premises, or cut thereupon ; — that they be decreed to make payment for the same, and that they be restrained by a writ of injunction from any further strip and waste.</p> <p>The defendants demurred to the bill for causes noticed in the argument.</p> <p>1. The bill shows that the plaintiff has a plain and adequate remedy at law. R. S. chap. 96, sec. 10; Webster v. Clark, 25 Maine, 313 ; R. S. chap. 169, sec. 3.</p> <p>2. Waste can be committed only by a person having some privity of estate, or some kind of tenancy in the premises. Eden on Injunction, chap. 9, page 115 to 129; Story’s Equity Com., vol. 2, sect. 913 and 919; R. S. chap. 129, secs. 1, 6 7, 11, 14, 15, 16.</p> <p>3. Courts of equity will not grant injunctions in matters of “ trespass,” except in case of irreparable injury, which cannot be prevented in any other way. Eden on Injunction, c. 9, page 139, 1st ed.; Johnson v. Lord Byron, 7 Yesey, 308; Eden on Injunction, c. 9, page 318. Stevens v. Beehman & ais. 1 Johns. Oh. 138, is a case very similar in all its features and directly in point.</p> <p>4. The plaintiff has a plain and adequate remedy at law for any injury theatened against his property. R. S. c. 169, 3, 4, 5, and 6.</p> <p>5. If the bill as presented does not exhibit a case for the interference of a Court of Equity, it will be dismissed on demurrer. Reed v. Johnson, 24 Maine, 322.</p> <p>It is not sufficient, that the case be one of which courts of general equity powers could take jurisdiction. It must be a case coming within the limited jurisdiction given by our statutes. Reed v. Johnson, 24 Maine, 322.</p> <p>By c. 96, § 11, “this court may issue writs of injunction in all cases of equity jurisdiction, whenever necessary to prevent injustice.” This case is within a general equity jurisdiction, and the necessity is urgent. If our claim were only for past damages, the equity jurisdiction of this court would not attach. But we ask prevention. If we can hold for one purpose, the court will take cognizance of the whole. But if entitled to the injunction only, our process is not defeated by asking more.</p> <p>This court has jurisdiction of waste, in the modern import of that term. 2 Story’s Eq. Plead. $ 918, 919, 925, 926, 928, 929; Jerome v. Ross, 7 Johns. Oh. 321, 322, 328, 330, 332.</p>

Trespass for an iron chain, which each of the parties claimed to own. The evidence tended to show, that each of the parties had a chain; — that each chain had been broken into several pieces; that the plaintiff, without the consent or knowledge of the defendant, carried all the pieces to a blacksmith, and had them made up into two chains; — and that the defendant carried away one of them into which some part of his own chain had been incorporated.

<p>In replevin, a verdict of non cepit and a judgment for return, are not conclusive upon the question of property. They only show that, for some cause, the defendant is entitled to the possession.</p> <p>A judgment of return, in an action of replevin, founded upon a verdict of non cepit, is not a bar to a suit involving the question of property.</p> <p>It is no valid objection to a declaration, that it contains one count in case and another of trespass, de bonis asportatis.</p>

Trespass, quare clausum fregit. The plaintiff’s farm was in possession of his tenant at will, who, by direction of the plaintiff, and with the plaintiff’s materials, had erected a fence upon it. The evidence tended to show that the defendant took down a part of the fence.

<p>Dower.</p> <p>The tenant and the demandant’s husband owned land as, tenants in common : viz. the Mosher farm in unequal proportions ; the Cox farm in unequal proportions; and a one acre store lot in equal‘proportions. There were mutual dealings between them, in which the balance was against the tenant. Their affairs were adjusted under the advice of referees. The demandant’s husband released to the tenant a part of the land, and received from the tenant a release of the other part. The part released by the tenant was of the greatest value. This inequality was occasioned by his said indebtment. These facts were shown by parole testimony, and that sort of testimony was objected to by the plaintiff. This suit, which is brought to recover the dower in the part released to the tenant, is resisted on the ground that the releases operated as a partition of the land, which had been held in common. The case was submitted for a legal decision.</p> <p>There was no partition as alleged by the tenant.</p> <p>1. Because the deeds do not say so. Deeds of partition are governed by rules analogous to those which govern deeds of exchange. For these rules, see Provost of Eaton College v. Bishop of Winchester, 3 Wils. 384, also Cass v. Thompson, 1 N. H. 65.</p> <p>Deeds of partition have been long recognized as special forms of conveyances. 2 Black. Com. 309, 324; Oliver’s Conv. 416, 421. This is not a deed of partition. Cruise’s Dig. title 32, c. 6, § 14, 17, c. 8, § 9 and 10. No agreement to make partition appearing from the deeds, such an agreement must be exterior, and to be recognized, must by the statute of frauds, be in writing.</p> <p>2. There was no just division of the landsdifferent and various considerations entered into the contract, and its settlement. Their real intention was not to make a partition, but simply to settle money claims at issue between the tenants in common.</p> <p>3. If a partition was made, yet the widow was not thereby barred of her dower, as she was not a party to it. Cruise’s Dig. title 18, chap. 2, sect. 42; Kent’s Com. vol. 4, p. 364, 365, notes, 8th ed.</p> <p>4. Dower is favored at common law. Coke’s Lit. sect. 93, note a; Stearns on Real Actions, chap. 5, sect. 274—278.</p> <p>The case calls for no anxiety in the court to sustain this suit. The demandant’s husband had much the largest share of the land. And in that share her dower is indisputable.</p> <p>There was a partition. Parol evidence is admissible to show it. The demandant, therefore, is not entitled to dower. Potter v. Wheeler, 13 Maine, 504; Rev. Stat. chap. 121, sect. 25; Dolph v. Bassett, 15 Johns. 21 : Gammon v. Freeman, 31 Maine, 243.</p> <p>Partition at common law was a bar. The land given was for land received. The same act which secured one piece, parted with the other.</p> <p>It is like the case of . a mortgage, where an instantaneous seizin confers no right of dower.</p> <p>There was a partition. 13 Mass. 504. There were deeds of release. The principle is, that partition is a bar. 15 Johns. 21.</p> <p>Such partition has been made by parol. Take the case of partition, where one takes all the land, and pays money to the other, or the case where one’s share is set off by a separate lot, with a balance in money. Can there be dower ?</p> <p>The parol testimony did not contradict the deeds. It contravened no rule of evidence.</p>

Exceptions from the District Court, Cole, J. Assumpsit. — The defendant on the 10th of July, 1849, drew an order directing one French to pay to the plaintiff $20, for value received.

Assumpsit, for money paid. In June, 1843, one Pease recovered judgment against the parties to this suit, upon a note in which this plaintiff was surety for these defendants. In 1846, J. E. McDonald obtained a discharge, under the Bankrupt law of the United States, upon his own petition, filed after said note became payable. In 1848, this plaintiff paid said' judgment, and now brings this suit to recover for the money so paid.

Assumpsit, for money had and received. One Johnson kept a boarding-house for college students, He had seventeen boarders, but there was no contract as to the length of time they were to board with him- On the 26th June, they had boarded with him thee weeks, and, in order to secure a debt to the defendant of $150, he assigned to him the accounts against said boarders, “intending to include as well whatever is due, as whatever may be due from them at any time within thee…

<p>A widow’s right of dower, before it is assigned to her, rests only in action.</p> <p>Her release or conveyance of that right, except to a party in possession or in privity of the estate, from which it accrued, is without effect.</p> <p>Such a right is not embraced by the R. S. c. 91, § 1, abrogating the common law rule, by -which disseizees are prevented from conveying.</p>

Indictment for breaking and entering a store and stealing therefrom.

Case for special damage sustained by the plaintiffs in their business and comfort by means of a railroad upon a public street. Myers & Co. had obtained from the city council a license to construct and exclusively occupy the railroad, for the purpose of transporting rocks and gravel, for their own benefit, and they gave to the city a bond to indemnify them against all liabilities for damage, which might be sustained by others, through the erection and use of the railroad.

Case, against the collector of the port of Wiscasset, for refusing to furnish to the plaintiff the proper papers, necessary for the navigation of his schooner, Palo Alto. Barnes formerly owned the schooner, In July, 1847, he mortgaged her to the plaintiff to secure two notes, payable Nov. 10, 1847.

Exceptions from the District Court, Cole, J. The defendant was prosecuted by complaint for selling spirituous “ liquor, not imported, viz., to Davis, one glass. He moved the court to quash the indictment, and after a conviction he moved that judgment be arrested. The reasons offered for the motions were — 1. That the facts charged do not amount to an offence. 2. That the allegations coming before the videlicet do not describe an offence. 3.

<p>This was an application for a writ of Habeas Corpus, to bring Phinney into court, because illegally imprisoned' in the public jail.</p> <p>He was held in custody, by virtue of a warrant .of commitment, issued by a justice of the peace.</p> <p>The matters recited in the] mittimus were, that said Phinney had been found guilty, by said justice, of violating the provisions of the statute relative to the sale of intoxicating liquors, and had been ordered by the said justice to pay a fine of ten dollars to the State and costs of prosecution.</p> <p>The mittimus was insufficient, because —</p> <p>1st. It did not show that the process was originated upon the complaint of any person.</p> <p>2d. It did not recite the time when, the place where, the person to whom, or the quantity in which, the intoxicating drinks were sold.</p> <p>3d. The fine imposed, was illegal, because it was ordered to be paid to the State, whereas the stat. (chap. 202, sec. 6,) declares, that one half of the fine, so recovered, shall enure to the prosecutor, or complainant, and the other half to the town where the offence is committed. Commonwealth v. Ward, 4 Mass. 497; Bridge v. Ford, 4 Mass. 641 ; Ex parte Watkins, 3 Peters, 193.</p>

Slander. General issue. The case was tried before Wells, J. The following facts appeared. A schooner belonging to the plaintiff, with his goods on board, had been seized by the collector of the port of Wiscasset, for an alleged breach of the revenue laws, and the collector had put the goods into a store. The Secretary of the Treasury ordered the property to be .restored to the plaintiff, upon payment, made by him, of the costs and expenses connected with the seizure.

Exceptions from the District Court, Cole, J. Trover for a wagon. One Blake, while owning the wagon, conveyed it in mortgage to the plaintiff, to secure the payment of a promissory note. Blake afterwards sold it to the defendant. This action is brought to recover its value. To prove title, the plaintiff introduced the mortgage, which had been duly recorded; but offered no other evidence, neither was any offered by the defendant.

Exceptions from the District Court, Cole, J. Assumpsit, upon an alleged contract by the defendant to purchase of the plaintiff from twenty-five to forty tons of pressed, hay to be shipped to Massachusetts. There was evidence tending to prove the contract as alleged, and that the plaintiff afterwards purchased forty tons, and procured it to be delivered at the stipulated time and place, in readiness .for the defendant, who though duly notified refused to receive it.

Debt, on a debtor’s six months relief bond. An execution, dated 26th of March, 1849, was issued against Tobie in favor of “John Rand, as he is administrator of the estate of S. W.” The execution purports to have been issued upon a judgment recovered March 23, 1849. Tobie was arrested and gave the bond to obtain his release.

At the County Commissioners’ Court, June term, 1847, a petition was entered for the discontinuance of one road, and for the establishment of another, in Windham.

Assumpsit, for the use of the plaintiff’s land, by carting and cutting rocks upon it. The defendant had, occupied the plaintiff’s land for said purposes.

Exceptions, from the District Court, Cole, J. Complaint for forcible entry and detainer. General issue. There was evidence tending to prove, that, in November, 1843, the plaintiff leased the land to one Oxnard by a written lease for five years ; and that the tenant was assignee of that lease, and under it had occupied the land for thee or four years, paying the rents to the plaintiff quarter yearly.

Debt upon an execution debtor’s relief bond. To prove that the condition of the bond had been performed, the defendants relied upon a discharge certificate issued by two justices.

Dyer, in 1850, presented to the Judge of Probate a petition setting forth, that he had a just claim against the estate of the intestate ; that he presented the same before the commissioners of insolvency, and on an appeal from their decision, recovered, in an action at law, in 1845, the sum of $250,28 against said estate, which amount the administratrix was bound to add to the list of other sums allowed against the estate ; that, during the pendency of said action at law,…

Exceptions from the District Court, Cole, J. This action was submitted by a rule of court in common form to referees. They awarded that the defendant (who had presented a set-off account,) should recover $171,81, with costs. On the plaintiff’s motion the award was recommitted for the correction of mistakes, if any had been made. The second award was of the same import with the first.

<p>A person, who, without authority, prosecutes a groundless action in the name of another, is liable to the defendant in such action, for the expenses and damages to which he has thereby been subjected, beyond the amount of the taxed cost.</p> <p>An omission by such defendant, to call, in court, for the authority to commence such a suit, is not a waiver of his right to recover against the person who wrongfully commenced it.</p> <p>Any one of the purchasers of land by the same deed, though in unequal proportions, who have given their several notes for each one’s share of the purchase-money secured by a joint mortgage of the tract, may, without the concurrence of the others, by bill in equity, ,set aside the mortgage as to himself, if the purchase of the land was procured by fraudulent representations of the grantor.'</p> <p>As such, purchaser, if entitled to a remedy, may pursue it alone, and thereby vacate the mortgage as to himself, the relation between him and the other purchasers could not authorize him to prose'cute bills in their names, and without their consent, to rescind the trade, as to them.</p>

The petitioners wished a town road to be established, extending from a point in one town to a point in another town. Upon their application the selectmen of one of the towns located the part within its limits, but the town refused to ratify their doings. The selectmen of the other town declined to make any location. The petitioners then appealed to the County Commissioners, who ordered the road to be made in both of the towns.

The bill sets forth, in substance, that in 1832 the plaintiff sold a lot of land in Newcastle to Benjamin Harris, “ beginning at the north-west corner of the plaintiff’s garden, thence running north sixty-six and one-fourth degrees west one hundred and two rods to a stake; thence west sixty-six and one-fourth degrees south twelve rods to a stake and stones ; thence north sixty-six and one-fourth degrees west about one hundred rods to a stake and stones, at or near the…

One Slater and his wife had gained a residence in the town of Minot, by having resided in the western part of that town more than five years. They then removed to a lot of land in the easterly part of the town, where they resided on the 24th of February, 1842, upon which day, the eastern part of Minot, including the lot on which Slater and wife lived, was incorporated, by an Act of the Legislature, into the town of Auburn.

<p>Solicitors, counselors and attorneys are not permitted to disclose, without the assent of their clients, any communication made to them in reference to their professional employment..</p> <p>To entitle a client to this protection, it is not essential that he be apprized of it, or that he enjoin secresy.</p> <p>This protection extends to all communications made with a view to obtain professional aid or advice.</p>

On Exceptions from Nisi Prius, Wells, J. presiding. The evidence tended to show the following facts, viz: — John M. Thompson was a trader in goods at retail. At a time when his stock of goods was small, the plaintiff purchased them, and authorized him fyy a sealed power of attorney to sell them for him. Said John M. Thompson soon afterwards purchased goods on his own account, which he placed for sale in the same store with the plaintiff’s goods.

Assumpsit, upon an account for lumber sold by the intestate to the defendant. One Lee and the defendant with another person were appraisers of the intestate’s estate.

<p>The petitioner represents, that he received a plurality of the votes, given for a County Commissioner, by the towns and plantations of the county of Lincoln, at their annual meetings held in Sept. 1850 ; whereby he was duly elected to that office ; —</p> <p>that lists of said votes were duly returned to the Secretary of the State; —</p> <p>that it was the right of the petitioner to have it declared by the Governor and Council, that he was elected to said office, and to have the same certified to him by the Secretary of the State; —</p> <p>that the Governor and Council, disregarding the rights of the petitioner, refused to declare him so elected; and, that the Secretary of the State has refused to certify such an election.</p> <p>Wherefore the petitioner prays, that a rule be issued to the Governor and Council and to the Secretary of the State requiring the Governor and Council to show cause, if any they have, why a writ of mandamus should not issue from this court., commanding the Governor and Council to declare the petitioner elected to the office of a County Commissioner, and the Secretary of State to certify said election.</p>

Debt upon a poor debtor’s relief bond. The plaintiff requested certain instructions. They were not given. The verdict was for the defendants. The plaintiff then moved to have the verdict set aside. This motion was overruled, and the plaintiff filed exceptions.

Exceptions, from the District Court. Assumpsit. It had been agreed in writing, that the plaintiff should build for defendant a barn of specified dimensions. The defendant had made several partial payments, and this suit was brought to recover the balance for building the barn. The defendant introduced much evidence to show that the barn, had not been built in such manner as the contract required.

Exceptions from the District Court. Assumpsit for refusing to employ the plaintiff at certain daily wages according to contract. The evidence tended to show that, by parole, it was agreed that the defendant would hire the plaintiff to labor for the defendant at Hallowed, but nothing was stipulated as to the continuance of the service.

Provision was niade for the appellee in the will of her late husband. She waived that provision in due form in the Probate Court, and applied for an allowance out of the personal estate, and was allotved' six hundred dollars. From that allowance, this appeal is taken by the heirs and legatees.

Trespass from breaking and entering the plaintiff’s pew, No. 47, in a meeting-house. The plaintiff claimed under a deed from the proprietors, given to him in 1825. He also showed by the proprietor’s books, that in 1824 he contributed $60 toward the erection of the house, that being one-half of one share. The defendant claimed under a deed from the collector of a tax raised for repair of the house.

Exceptions from the District Court. Assumpsit against an administrator on an account against the intestate. The inventory exhibited one lot of land and some personal property, belonging to the estate. The defendant offered one of the heirs as a witness. The plaintiff objected to his admissibility.

Exceptions. Assumpsit by the indorsee against the indorser of a promissory note. The exceptions recite some of the circumstances, under which the note was obtained, but do not purport to present all the evidence in the case. Wells, J. instructed the jury that, if the note was obtained by fraud, and negotiated to the plaintiff with the knowledge, on his part, of the fraud, the action is not maintainable.

Replevin, of a horse and sleigh. Hunton & Greeley were co-partners in business. They owned the horse and sleigh, and Hunton sold the same to the plaintiff, taking his note payable to the firm. They were afterwards attached, as the property of the firm, by the defendant, a deputy sheriff, on a writ in favor of Reed & Co. This action of replevin was then brought. The defence was, that the sale to the plaintiff was intended to defraud creditors.

Assumpsit, by the indorsee, against the makers of a promissory note for $1000, alleged to have been dated September 25, 1841, payable in one year; and also upon the money counts. At the September term, 1848, it was agreed, between the plaintiff and Morse, that the action should be discontinued as to Morse, and that Morse should take no cost.

Complaint, addressed “ to John C. Cochran, Esq., a justice of the peace, and justice of the town court of East Thomaston.” It appeared, that the Legislature of 1849, of which Mr. Cochran was a member, enacted the statute, c. 128, establishing the town court of East Thomaston, and providing that the justice of the court should be selected by the legal voters of the town; that no person should be eligible, unless he were a justice of the peace and quorum ; and, that he should…

Exceptions from the District Court, Rice, J. Complaint, dated October 1, 1850, for selling intoxicating liquor, on the 30th of September, 1850. The defendant was found guilty, and sentenced to pay a fine of $20. From that judgment he appealed to the District Court.

Exceptions from the District Court, Rice, J. Indictment, alleging that the defendant had composed, written and printed a false, scandalous, malicious and defamatory libel, of and concerning one J. R, charging him with having committed several offences, which are, by statute, made felonies. The trial was had upon a plea of not guilty. The defendant offered to prove certain acts of the said J. B., coming within the class of misdemeanors, but the evidence was rejected.

Assumpsit, by the indorsee against the maker of the following note. “ Boston, Sept. 7, 1847. Three months after date, I promise to pay E. Moore & Co. or order one hundred and fifty dollars, value received.” The note was indorsed by the payees and by a second indorser. These indorsers, together with the plaintiff, were always residents of Maine. The defendant was of Massachusetts.

On exceptions from Nisi Prius, Howard, J. Case, under the statute, for damage through a defect in the highway. The testimony tended to show, that the female plaintiif was injured by such a defect, and that she endured pain and was unable to labor for a season, and that physicians had been called to prescribe for her.

On a Report from Nisi Prius, Howard, J., presiding. the 24th of October, 1848, the plaintiffs contracted in writing with the defendants to construct a railroad upon a specified location, and in a prescribed manner. The contract contained many specifications.

On a Report from Nisi Prius, Howard, J. This is an action to recover damages of the defendant, who had erected a dam and sluice on his.own land on the Carleton stream in Troy.

Trespass for taking the plaintiff’s horse. The defendant admitted the taking, and set up, as a justification, that he was, the collector of taxes of the West Pittston Village Fire Company, established by the Act of 1847, chap. 34, of Special Acts; that the defendant was liable to taxation in that comany, and had been assessed in the tax bills, $44,15 ; that defendant refused to pay the same, and that, after duly advertising, &e., he sold the horse for $65,00, and that, after…

Trespass for taking the plaintiff’s four cows. Defendant justified on the same grounds, as in the preceding case of Blanchard against him, ante, page 557. His return upon the warrant stated that the tax was $58,02; that the charges were $5,99; that he sold the four cows for $121, and offered to restore the balance, $56,99, to the plaintiff.

Writ de homine replegiando. The officer’s return upon it was, that he had replevied the plaintiff, and delivered her to Noah Woods, Esq. The defendant pleaded non cepit, with a brief statement, avowing the taking of the plaintiff by the defendant, as her father and natural guardian. No issue was joined.

Assumpsit, for sailor’s wages. This action came into the District Court by an appeal from the judgment of a justice of the peace. The facts were then agreed in the District Court, with a stipulation that judgment should be rendered upon nonsuit or default, as the court should adjudge to be legal.

<p>Whether, in rendering a judgment, the Court of County Commissioners had jurisdiction, must appear from their records.</p> <p>A petition to the Commissioners, placed upon their records, stating certain facts and invoicing their action, in a matter within the scope of their duty, growing out of such facts, gives them jurisdiction.</p> <p>A judgment of the Court of County Commissioners, in a matter shown to be within their jurisdiction, is in force, until reversed, although there be omissions and informalities in the recitals of their records, as to the preliminary proceedings.</p>

Debt on bond, given to Howard Pettingill and Anne, his wife, and the survivor of them, by the defendant’s testator, and four other persons. The obligors were the children of said Howard. The bond was conditioned to furnish support and comfort to his wife, during her lifetime. This action is brought by her. The said Howard devised his lands to several of his children in different proportions, and charged the lands with the performance of the bond.

Exceptions from the District Court, Rice, J. Complaint under the Act of 1846, chap. 205, sect. 5, for the sale of intoxicating liquor, on or about July 25, 1850. The defendant offered in evidence a license from the licensing board, purporting to have been issued Nov. 9, 1849. The Judge refused to receive it in evidence, unless the defendant should prove that it was duly granted, and that a bond was given as required by the 3d section of the Act.

Trover for a promissory note of $200 given by Bourne to the plaintiff, and by the plaintiff indorsed in blank, — called note B. The cause came on before Howard, J., and was submitted for decision by the full court upon the testimony; which was to the following effect. Plaintiff owed the hank on a note called note A, wherein Dammon was a surety.

<p>The standard of care required of travelers upon the highway, is such care as persons of common prudence generally exercise.</p> <p>If .a defect in the plaintiff’s carriage, though it were unknown to him, or if any other want of care on his part, contribute, jointly with a defect in the highway, to produce an injury to the plaintiff, the town bound to keep the way in repair is not accountable.</p>

Exceptions from the District Court. Assumpsit to recover the value of a mill log. The plaintiff called a witness, who testified to the plaintiff’s ownership of the log, and that it was used in 1849, as one of the boom-sticks of which the defendant’s boom was made, that the defendant had occupied and used the boom for the years, 1847, 8 and 9, and that he, the witness, had paid to the defendant boomage for logs secured in that Jboom within those years.

Trespass for breaking and entering the plaintiff’s close and •cutting trees.

Replevin, before Howard, J. The defendant pleaded the general issue. Afterwards, find-hog that the officer’s return did not state that a replevin bond had been taken, he moved that the writ be quashed for that reason. The motion was overruled. To prove title to the property, the plaintiff introduced his bill of sale, also the subscribing witness, who, in answer to the plaintiff’s interrogatory, testified to its execution.

<p>Exceptions from the District Court, Rice, J.</p> <p>Indictment for a riot. The defendants objected to the admission of certain testimony, and also moved the court to arrest the judgment after verdict, though without specifying any reason for the arrest. The testimony was admitted, and the motion in arrest was overruled. To the admission of the testimony and to the overruling of the motion, the defendants filed exceptions.</p>

Exceptions from the District Court, Rice, J. Indictment, charging that defendants, Dec. 1, 1850, ‘-'the wooden building of one Harrison Jaquith, in the night time, did break and enter, and five bushels of wheat, &c. of the goods and chattels of the said Harrison Jaquith, then and there in the building aforesaid being found, feloniously did steal, take and carry away in the shop aforesaid.” The verdict was against the defendants.

Indictment for an assault upon one Joanna Roberts, with intent, her the said Joanna Roberts feloniously to ravish and carnally know by force and against her will. The defendant moved the court to quash the indictment, because it does not set forth whether said Joanna was of the age of ten years, or under that age. The motion was refused, and the defendant filed exceptions. The defendant also moved in arrest of judgment.

Assumpsit upon a negotiable note against the makers. It was indorsed to the bank by the payees, who had subsequently settled it with the bank by their draft on W. & H. Stevens. There was no proof that the bank had authorized or assented to the bringing of this suit. A nonsuit was directed, which is to be stricken off if improperly ordered. By the production of the note, the plaintiffs are to be considered rightfully in court. The bank has an interest in the note.