Volume 33 — Maine Reports

<p>A contract obtained by fraudulent representations cannot be sustained by the fraudulent party to the injury of the party imposed upon.</p> <p>To avoid a contract for misrepresentation, it must appear — that a deception was intended and was practiced; — that it was successful, and that it operated a damage to the party deceived.</p> <p>Though a party may have been deceived by fraudulent representations, it is not usual for courts to interfere in his behalf, if he had full means of ascertaining the truth and detecting the fraud, and yet neglected to do so.</p> <p>A contract made for the sale and purchase of property, though founded upon the misrepresentations of the seller, cannot be wholly rescinded, for the reason of such misrepresentations, if, prior to the completion of the sale, the purchaser had become acquainted with the whole facts, and yet confirmed the bargain.</p>

On exceptions from Nisi Prius. Indictment for burning a barn, on the 18th March, 1849, within the curtilage of a dwellinghouse. It appeared upon the trial that the house had been occupied for keeping persons infected by the small pox, but that they had all been removed from the house three or four weeks before the barn was burnt; that during that period of three or four weeks the house had not been occupied by any person, as a dwellinghouse.

On exceptions from the District Court, Cole, J. Mason pleaded that he liad in his hands and possession no goods, effects or credits of the defendant, unless it should be otherwise adjudged upon his answers to the interrogatories which might be put to him, and therefore submitted himself to examination upon oath. The interrogatories were thirty-six in number. A part of them he declined to answer.

<p>A witness will not be permitted to testify wbat course of action be should hare taken, if certain specified facts had not occurred.</p> <p>A party is responsible for the ideas which his language was suited to convey, and did convey to the mind of another person, if such person has thereby been led to perform,^or omit to perform, any act in relation to his interest.</p>

<p>A bond given to bnsband and wife for their maintenance during each of their lives, belongs to the wife, if she survive the husband, unless reduced to possession by him.</p> <p>To reduce it to possession, the husband must do some act, indicating an appropriation of it to himself or disaffirming her right.</p> <p>The recovery of a judgment by him in the name of both, upon such a bond, without taking out execution, shows a disposition not to appropriate it to himself.</p> <p>In a mortgage made to the husband alone to secure such a bond, the wife has a sustainable interest.</p> <p>After the death of the husband and a foreclosure of the mortgage by his administrator, the administrator and those holding by purchase under lñm, will hold the land, charged with the maintenance of the widow, in proportion to the value of their respective parts. The liability of such holders commences from the time of them respective purchases.</p> <p>A tenant of one who holds land subject to such a charge, is properly made a party to a bill brought by the widow to enforce her claim, for the decree may be such as to terminate Ms tenancy.</p> <p>In equity, the husband may be trustee of the wife, and the trust in his hands may be enforced, as if he were a stranger, and Ms representatives are subject to the same liability.</p> <p>"Where a registered mortgage deed of land mentions the bond, (wMch it was intended to secure,) although without specifying its contents, subsequent purchasers are chargeable with notice of its provisions.</p>

<p>When death ensues by the act of one in the pursuit of an unlawful design, without intent to kill, it is murder or manslaughter, as the intended offence was felony or a misdemeanor.</p> <p>Any crime, liable to be punished in the State prison, is a felony.</p> <p>The using of any means, with intent to destroy the child of which a female is pregnant, and the destroying of the child thereby before its birth, unless done to preserve the life of the mother, constitute a felony.</p> <p>If by the use of such means and with such intent, the death of the mother be occasioned, it is murder.</p> <p>The 'using of means, with intent to procure the miscarriage of a pregnant female, and the procuring of the miscarriage thereby, unless done to preserve the life of the mother, is a misdemeanor.</p> <p>If, by the use of such means and with such intent, the death of the mother be occasioned, it is manslaughter.</p> <p>If, upon such a charge in an indictment, a verdict be rendered of murder, it will be reversed for error.</p> <p>To procure an abortion, as to a female, pregnant but not quick with child, was not, at the common law, an oifence, if done with her consent.</p> <p>By our statute, the procuring of an abortion is an offence, whether the child had quickened or not, and whether with or without the consent of the mother.</p>

<p>If, upon the line between adjoining lots of land, there has been no obligatory division, for the maintenance of a partition fence, the owner of each lot is bound to keep his cattle from crossing the line.</p> <p>It is a trespass, if the cattle of the one cross into the land of the other.</p> <p>This rule is not dislodged, though the owners of the lands may have maintained a line-fence, by severally building such parts as to be satisfactory to each other.</p> <p>The wrongful removal by the plaintiff of the part of the fence built by the defendant will not constitute a license for the defendant’s cattle to cross the undivided line, after there has been such a lapse of time, as to give to the defendant, a reasonable opportunity of building a new fence.</p>

<p>On Report from Nisi Prius, Shepley, C. J. presiding.</p> <p>Covenant broken.</p> <p>The defendants, with one Clapp, had conveyed to the plaintiff a lot of land, by a deed dated Nov. 6, 1848, and acknowledged Nov. 25, 1848, for the consideration of $1600.</p> <p>On that 25th of November, the defendants gave to the plaintiff a joint sealed obligation, that if, at the expiration of one year from the date of said deed, he should prefer to re-convey said land to said Clapp, Moody and Walker, and shall offer to do the same, the obligors would accept the reconveyance and pay therefor the said sum of $1600. It appeared in the case that Clapp had no interest in the land, but executed the deed merely to aid in the division of certain estates.</p> <p>On the 26th of Nov. 1849, the plaintiff executed a warranty deed of the land, running to Clapp, Walker and Cook, and tendered it to Walker who refused to accept it.</p> <p>Clapp testified, subject to objection, that he had no interest in the land, or in any supposed reconveyance of it, that he never assented to be in any way bound by the obligation, and that he should not have taken the deed, if offered to him; and that he shall not accept any interest in the land.</p> <p>This action is brought upon that obligation, and is submitted for a legal decision. If the defendants are held liable, the rule of damages is to be fixed by the Court. It appeared upon the argument, that the deed is now on the files of the Clerk, ready for delivery to the defendants, whenever they may wish to receive it.</p> <p>No tender of a reconveyance was made to .Cook, or notice that the plaintiff preferred or proposed to reconvey. Brown v. Gammon, 14 Maine, 276. The reconveyance was attempted too late.</p> <p>The terms of the contract clearly show the necessity that the plaintiff should make known to each defendant, that he preferred to reconvey, and should make the offer to each.</p> <p>The offer to convey was a condition precedent. 5 Pick. 395 ; 21 Pick. 90.</p> <p>When Walker refused the deed, it was the plaintiff’s duty to offer it to Cook.</p> <p>• It was of the essence of the contract that the offer of re-conveyance should be made to both. They each had an interest to know whether the land was incumbered, by attachments or otherwise.</p> <p>The obligation requires the deed of reconveyance to be made to Clapp, Moody and Walker ; not to Clapp, Walker and Co ok.</p> <p>This was obviously a mistake. So the plaintiff’s counsel concedes, arid he asks the necessary correction to be made by the Court.</p> <p>We also consider a correction necessary. Clapp had no interest in the land, was not one of the obligors. It was never contemplated that, in any event, any part of the land should be reconveyed to him. In such a supposition there would be an evident absurdity. The reconveyance, if any, was to be made to Walker and Cook, they alone being interested. Here is, by admission of both parties, a need of judicial interposition to reform a contract, at least to give it an effect according to' its design. From the testimony of Clapp, taken in connection with the bond, the real design of the parties become perfectly obvious. That design, when legally made apparent, the Court will effectuate. Parol testimony was admissible to show it. 2 Cow. 228, per Woodworth, J.; 8 Mass. 214; 10 Mass. 379 ; 11 Mass. 302; 11 Pick. 154; 16 Maine, 146; 13 Maine, 367; 20 Maine, 61; 24 Wend. 423 ; 3 Story’s Rep. 181; 10 Mete. 170; 14 Maine, 185, 233; 19 Maine, 394; 17 Conn. 201 ; 19 Johns. 313; 1 Term Rep. 701; 13 Pick. 261, 530; 4 N. H. 23 ; 4 Mass. 110, 196 ; 7 Greenl. 421; 11 Maine, 426.</p> <p>So the court, in such a case, will look into the motives that led to the contract. 2 Gill & Johns. 382; Levinz. 272 ; 2 Story’s C. C. R. 286; 6 Cow. 483.</p> <p>The word “reconveyance,” in this case, cannot be taken in its technical sense. The conveyance was to be to the obligors.</p> <p>Walker and Cook owned the land, and received the $1600 of the plaintiff for it. It would be absurd to suppose they stipulated to pay back that money on the plaintiff’s deeding to them only two thirds of the land.</p> <p>The defendants did not contract that Clapp should accept the conveyance, and he testifies that he should not have taken the deed, and should accept no interest in the land. The effect is that one third of the land still remained in the plaintiff, notwithstanding the deed he offered.</p> <p>Shepley, C. J. Is it clear, that if conveyance be made to three, and one of them refuse to accept, that one third remains in the grantor. Suppose it made to A, B and C, and there be no such person as C, who takes the estate ?</p> <p>Clifford. The rule is that, if promise be made, and no promisee is named, it operates to the use of the party from whom the consideration moved. By the converse of the rule, the deed must be made to the persons to whom in equity it belongs.</p> <p>The obligation on which this suit rests is incongruous. Unless its meaning can be ascertained by extraneous proof, it is merely void. 1 Comyn’s Dig. Agree. C. If the extraneous proof be used, it clearly shows the deed was made to the wrong persons, and thus the action fails.</p> <p>In cases like this, the rule of damage in this State is yet an open question. The proper distinction has not been kept up as to cases against vendors and cases against vendees. In this case, the plaintiff still owns the land. His attempted conveyance was not accepted, and therefore did not divest his title. Suppose, prior to the decision in this case, the land should be attached as property of the plaintiff. Doubtless his creditors could hold it. The established rule is to allow for breach of a contract the exact and real loss sustained. In this case, it would be the difference between the value of the land and the contract price. Some evasions of this rule have been effected by a bungling mode of compelling specific performance through the medium of a tender, and by treating the tender as a performance. But a tender is no performance. By a fiction, it is viewed as equivalent. But this is only for the special purpose of giving an action, not of fixing the damage. It is but a quasi performance. 21 Wend. 457; 17 Maine, 232; 1 Denio, 59. Suppose the defendants had waived the tender of a deed, and no deed had been made, what damage could the plaintiff recover ? As it was, the deed passed nothing. Can the plaintiff keep the land, and yet recover its value? 19 Maine, 268; 15 Maine, 296.</p> <p>Shepeey, C. J. Suppose a deed made by A to B and deposited with C to be delivered to B, and B afterwards accepts it. Did the estate pass at the time of the deposit with C, or at the time of the acceptance by B ? Suppose a father deposits a deed for his son and dies.</p> <p>Clifford. As between the parties, it might pass by the deposit. But otherwise as to creditors. In the supposed cases, there was no refusal. In this case there was an express refusal.</p>

<p>A recovery and satisfaction of a judgment against one of several joint trespassers upon land, 'will discharge an action by the same plaintiff, previously commenced ¿gainst another of the joint trespassers for the same act.</p>

On Exceptions from the Nov. Term, 1850, Shepley, C. J., presiding. Held: as to enable them thereby to obtain a title ; that neither party appeared to have been an original proprietor or owner of the land or to have obtained title by any conveyance from such owner or proprietor; that the title presented by the defendant depended upon the assessment and sale of the land for neglect to pay the taxes…

On report from the District Court, Rice, J. Assumpsit, by an indorsee against the maker of a note bearing date Jan’y 14, 1847, payable in two years from date with interest. The defence was, that the suit commenced Oct. 8, 1849, was premature.

<p>If a party would, exclude an interested witness from testifying, his objection must be presented at the earliest opportunity.</p> <p>If not so presented, there arises a presumption that the objection is waived.</p> <p>It is a general rule, that if the objecting party, in order to prove the interest of a witness, has examined him on the voir dire, it is too late for him, for the purpose of showing that interest, to prove from other sources, any facts which were known to him at the time when the witness was examined.</p> <p>It is not competent for an objecting party, in order to exclude a witness, to prove that the witness has made admissions of his interest in the case.</p> <p>Where one had brought a suit, for his own benefit, using, without authority, the name of a third person, as plaintiff, and, upon a failure of such action, the nominal plaintiff had been compelled to pay the bill of cost, an action lies for such nominal plaintiff to recover the amount of such payment against the party by whom the suit had been brought.</p> <p>For such a recovery,--assumpsit is an appropriate remedy.</p> <p>In such a ease the implied promise is a sufficient basis for maintaining the action.</p>

On exceptions fxom a Nisi Prius term of this Court, Wells, J. .In 1839, Dr. Ford, the defendant, and Dr. Clark were practising physicians. The defendant resided at Damariscotta. Dr. Clark lived at Bristol. Some arrangement was made between them, that Clark should give up his practice to the defendant, and remove from Bristol. In consideration of that contract, the defendant gave the note now in suit. The note is unnegotiable, and made payable to the plaintiff.

<p>On report from Nisi Prius term, Shepley, C. J. presiding.</p> <p>Covenant broken.</p> <p>The defendant was maintaining a dam across the Cobbissee river, by which the water was flowed back upon the lands of several riparian proprietors, of whom the plaintiff was one. Between those proprietors and the defendant, an instrument of agreement was entered into, under their respective seals, of the import described in the opinion of the court.</p> <p>Under the stipulation by the defendant he reduced his dam to the agreed point. Of the back-flow afterwards resulting from the dam in its reduced condition, the plaintiff made no complaint. But the defendant afterwards raised the dam to its original height, thereby creating damage to the land of the plaintiff. To recover for that damage, this suit is brought upon that covenant, by which the defendant had bound himself to keep the dam at the reduced height.</p> <p>The defendant put in four pleas.</p> <p>Two of them were traversed and the issues were found for the plaintiff, with damages assessed at $100.</p> <p>The third plea alleged, in the defendant a right to flow, acquired by twenty years uninterrupted user, prior to the making of the covenant.</p> <p>The fourth alleged a grant, now lost, made about the year 1773, to the defendant’s ancestor by the Proprietors of the Kennebec Purchase, who then owned all the lands now flowed by the dam.</p> <p>To these last two pleas, general demurrers were filed. The defendant requested instruction to the jury, that the covenants of the parties to the sealed instrument were dependent covenants ; that the reservation, made by the plaintiff, authorized the defendant to restore his dam to its original height; and that the only penalty for his so doing was to authorize the plaintiff to annul his grant, and resort to the remedy for flowing, given by the statute; and that, therefore, this action is not maintainable. These instructions were not given. If they ought to have been given, a new trial is to be granted.</p> <p>Under an erroneous construction of the law, though declared by the appropriate tribunal, (see Tinkham v. Arnold, 3 Greenl. 120,) the defendant stipulated to reduce his dam from a height to which it had been maintained for 60 years. And the plaintiff, in consideration of that stipulation, and assuming that he had a right to prohibit the flowing, granted to the defendant a right to flow by the reduced dam, reserving the privilege of annulling the grant, whenever the dam should be raised.</p> <p>The defendant has pleaded that, prior to the covenant, he had uninterruptedly occupied the dam to its original height, and thereby flowed the water for twenty years ; and also that, about the year 1773, the Proprietors of the Kennebec Purphase, then owning all the land alleged to be flowed, granted to the defendant’s ancestor, &c. the right to flow to the height of the dam in its unreduced condition.</p> <p>By demurring, the plaintiff admits the facts stated in the pleas, if properly pleaded. They were properly pleaded, because they apply directly to ' the only valuable consideration alleged in the instrument to have been given for the defendant’s covenant. They assert, in the defence, the very right which the plaintiff assumed to grant, and negative all such right in the plaintiff.</p> <p>If the consideration, expressed in the instrument, had been ostensibly \of no value, the raising of the dam could give to the plaintiff no cause of action. Suppose the alleged consideration for the covenant now sued had been that the plaintiff would grant to defendant a right to take a journey, it could support no action. In that case, the want of consideration would appear on the instrument itself; in this case we point it out by a plea, which is of equal efficacy.</p> <p>Should it be said there was, in raising the dam, a technical breach of the defendant’s covenant, we reply, there was virtu ally a breach of the plaintiff’s covenant, in assuming to grant to the defendant that which the defendant already possessed.</p> <p>The grant from the Kennebec Proprietors, admitted by the demurrers, is to have the same effect as if made by the plaintiff himself. Suppose, prior to the indenture, the plaintiff had made such a grant, how illusory would have been the reiteration of it, contained in the indenture.</p> <p>Even if there toas a technical breach of the defendant’s covenant, yet on the facts presented and admitted by these pleadings, the damage could be but nominal. If it be said, the jury, under the other issues, have found real damage, the answer is that, under those issues, the jury had not the evidence furnished by these pleadings.</p> <p>Suppose the plaintiff, instead of demurring, had taken issue on any of the material facts, alleged in the pleas, and the issue had been found for the plaintiff, the jury could have assessed but nominal damage, if any. Surely the plaintiff’s admission of the facts should avail to the defendant quite as much as the finding of them by the jury. Where one sued upon the covenants in a deed, and the only incumbrance was a mortgage to himself, he could recover but nominal damage. Beam v. Mayo, 5 Greenl. 94. So in slander, for loss of character, the defendant may prove the plaintiff had no character to lose. It is to be remembered that this is not an action on a bond with penalty, but is one merely sounding in damages. The plaintiff cannot urge that the pleas, if traversed, would have formed immaterial issues, for the facts stated in them, if found true, would have precisely met and annihilated the plaintiff’s claim.</p>

<p>On report from Nisi Prius, Wells, J.</p> <p>Writ or entry on the demandant’s own seizin. General issue pleaded.</p> <p>The tenant offered to prove that he and one Dakin and this demandant were tenants in common of land, which included the demanded premises ; that he and Dakin presented a petition for partition, upon which notice to this demandant was ordered, returnable at the October term; that, at that term, Messrs. Sawyer & Gilbert, attorneys of the Court, entered their names on the docket, under the action, in the form as follows: “Sawyer Sf Gilbert, for special purposeand that, at the same term, this demandant was defaulted, and commissioners to make partition were appointed, by whose report, (accepted at a subsequent term,) the demanded premises were set off to this tenant. The record, the docket, the petition and all the papers connected therewith, were referred to as evidence.</p> <p>The Judge ruled that, by these proceedings, the demand-ant was estopped to deny the tenant’s title. The case was then taken from the jury, and that queston was reserved for the consideration of the whole Court.</p> <p>The R. S. chap, 121, sect. 33, provides, that if “ any person who has not appeared and answered to the petition for partition, shall claim to hold in severalty the premises described therein, or any part thereof, he shall not be precluded by the judgment for partition.”</p>

<p>Tho defendant was selected by the principal in a debtor’s relief bond to act as a magistrate in an adjudication upon the debtor’s disclosure, and, upon such disclosure, united with the other magistrate in giving a discharge-certificate to the debtor, when in fact the defendant had no authority to act as such magistrate; whereby the surety in the relief bond was compelled to pay the same: — Hold, that for such assumption of authority, the defendant was not liable, in an action brought by the surety.</p>

<p>Assumpsit per account annexed to the writ, and upon a written contract.</p> <p>The account was as follows: —•</p> <p>“ Leonard March</p> <p>To Rufus Rogers, Dr.</p> <p>1846.</p> <p>January. For 8 days services, planning and giving advice for Boom, $5,00, $40 00</p> <p>“ expenses to and from Bangor, 23 00</p> <p>February. “ making model of piers of Kesway boom, drawing and making plan of same, and calculating dimensions of same, 50 00</p> <p>March. “ time and expenses of hiring men, 17 50</p> <p>April. “ 13 days work, a $7,00, 91 00</p> <p>“ expenses paid, 26 99</p> <p>248 49</p> <p>Services per agreement 800 00</p> <p>$1048 49</p> <p>The following is a copy of the contract.</p> <p>“ I will give Mr. Rufus Rogers, eight hundred dollars for the route from April 8th to September 1st, and expenses both ways — meaning to leave Topsham 8th April, and Fredericton Sept. 1st. Should we detain him longer than Sept. 1st at boom, we will allow him seven dollars per day for every day after Sept. 1st that he is detained at the boom.</p> <p>“ L. March, Agent of Fred. Boom Co.”</p> <p>“ Bangor, Jan’y 15, 1846.” ,</p> <p>“ Should we require you to work on Sundays, to be allowed extra, at the rate of seven dollars per day. Should we get through the work of the boom before Sept. 1st, no discount to be made. L. M.”</p> <p>The parties to this suit are citizens of this State, the plaintiff residing at Topsham, and the defendant at Bangor. The Fredericton Boom Company was incorporated by the Legislature of the Province of New Brunswick, and is legally established and located in a foreign country. The defendant was its authorized agent, with power to employ persons for the company.</p> <p>Pursuant to the contract, the defendant went to Fredericton, New Brunswick, where he labored upon the company’s boom for a few days, till discharged by the defendant.</p> <p>Each party put into the case depositions and letters.</p> <p>The defendant also introduced two receipts signed by the plaintiff, which were as follows: —</p> <p>“ Fredericton Boom Co., to Rufus Rogers, Dr.</p> <p>Expenses from Topsham to Fredericton and returning, $52 65</p> <p>17 days time, 34 00</p> <p>£21 12 3. $86 45</p> <p>“ 18th Feb’y, 1845. —Rec’dpay’t of Oliver Frost, agent.</p> <p>“ Rufus Rogers.”</p> <p>“Received of L. March, as agent of F. Boom Co., one pound, about April 6, 1846; also two pound ten shillings about May 12; also twenty-five pound this day, to be accounted for on settlement. “ Rufus Rogers.”</p> <p>“£28 10</p> <p>$114 00 May 14, 1846.”</p> <p>One of the plaintiff’s deponents testified that Oliver Frost was agent of the company for 1845.</p> <p>The following are extracts from letters written by the defendant to the plaintiff, after the contract was made: — “1 have hired all the men I shall want from this way:” — “1 want you to be here and go down with me;” “ I have ordered the timber.” “I want you to write me in season.” “Give me your ideas on the subject;” “ I do not like to advance on last year’s price.” “I think we had better go early, should like to have you arrange to be ready.”</p> <p>The case was submitted to the Court, with power to draw inferences of fact.</p> <p>1. The evidence sufficiently shows that the contract was entered into by the defendant personally, and that he bound himself, as an individual to pay the plaintiff.</p> <p>It is Leonard March who promises to pay ; his signing as agent has not altered his liability. The statute, chap. 91, sec. 14, treats' exclusively of conveyances and contracts relating to land, and does not apply to this case. 1 Greenl. 231, 237, and 339.</p> <p>“It is not sufficient that a person, in order to discharge himself from a promise' in writing, should show, that he was in fact the agent of another, but it should be made to appear that he treated as agent and actually bound his principal by the contract." “ Nor is it sufficient that the agent describe himself in the deed or contract as acting for and in behalf or as attorney of the principal, for if he do not bind his principal but set his own name and seal, such expressions are but designate personoe; it is his own act and deed, and he is bound personally.”</p> <p>To discharge himself the agent must give a right of action against his principal; here March has done no such thing. The writing is the only evidence of the contract, and plaintiff must have introduced it to maintain an action.</p> <p>The Boom Company is not within this jurisdiction, a suit against it, then, must have been brought in New Brunswick, where it was located, but no suit could for a moment be maintained there on such a contract, for it is not stamped, and by the laws of that dominion a stamp is indispensable. Giving then no right of action against the compa^r, the inference is irresistible, that he intended to bind himself.</p> <p>It is evident from the contract, that for a portion of the work at least, March promised, in his individual capacity to pay. He does not even sign as agent.</p> <p>2. The defendant, if acting as an agent, was a resident agent of a foreign principal. In such cases, the credit is presumed to be given to the agent, and he is treated as the principal. 3d ed. Story on Agency, sect. 268, 290 and notes : 2 Kent’s Com. 5th ed. 629, 630; Tainter v. Pendergrast, 3 Hill, 72 — 3 ; Paterson v. Gaudesequi, 15 East, 62 ; Thompson v. Davenport, 9 B. <fc Cr. 78 ; DeGaillon v. L’Aigle, 1 B. &. P. 368; Houghton v. Matthews, 3 B. & P. 490 ; Chitty on Contracts, 230, 6th American edition.</p>

<p>The appointment of a guardian ad litem is at the discretion of the Court.</p> <p>No duty rests upon a plaintiff to ascertain the mental capacity of a defendant ' and bring it before the Court, in order that a guardian ad litem, may be appointed.</p> <p>In a suit in error, a waiver of exceptions, taken to alleged irregularities in the preliminary proceedings, authorizes no inference that the proceedings were correct.</p> <p>A defendant who becomes rum compos mentis must, if of full age, appear by attorney and not by guardian.</p> <p>Therefore, in a suit to recall or reverse a judgment recovered against such a defendant in a civil action, it cannot be alleged as error, that no guardian or guardian ad litem had been appointed.</p> <p>Nothing which contradicts the record can be alleged as error.</p>

<p>On exceptions from the District Court, Rice, J. presiding.</p> <p>Indictment, containing three counts. The second count alleges, in substance that, at Waterville in this county, the President, Directors and Company of the Ticonic Bank entrusted and delivered to the defendant sundry bank notes, checks, drafts and other evidences of debt, the property of said bank, to the amount and of the value of $3418, to be delivered by the defendant to the Cashier of the Suffolk Bank in Boston, in the Commonwealth of Massachusetts, and that the defendant feloniously embezzled and converted the same to his own use, before the same had been so delivered, against the peace and contrary to the form of the statute.</p> <p>The evidence tended to prove that, at the time and place alleged, the Ticonic Bank, delivered to the defendant a sealed package containing bank bills, checks, drafts and other evidences of debt, of the character, and to the amount and for the purposes alleged in the indictment, that the defendant immediately proceeded to Boston, and that in four or five days after the receiving of said funds he, at Watervfile, delivered back to the Cashier of the Ticonic Bank a portion of said checks, drafts and acceptances, saying he had used the rest of the contents of the package, amounting to 2145 dollars and-cents.</p> <p>The defendant’s counsel requested the Judge to give instruction to the jury, that they should acquit the defendant of the charge of embezzlement, unless satisfied that the act of embezzlement was committed within this State. That instruction was not given, but the jury were instructed, that if the ¡defendant was intrusted at Watervfile with the property for the purpose of carrying it to Boston, and if, before delivering the same there, he embezzled or fraudulently converted it to his own use, and refused to account for the same on demand in this county, the offence was made out, and might be prosecuted for in this Court.</p> <p>The defendant was found guilty upon the second count. He filed a motion in arrest of judgment, 1st, because the value of each description of the property was not set forth, and 2d, because in the second count, it is not averred, that the fraudulent conversion was committed in this county or in this State. The motion was overruled, and to that overruling and to the instruction and to the rufusal to instruct, the defendant excepted.</p> <p>1. The judgment should be arrested, because the indictment contains no statement of the place where the offence was committed. The place must be named, and it must appear to have been within the jurisdiction of the Court. Roscoe’s Cr. Ev. 259 : 26 Maine, 263 ; Hawkin’s P. C., B. 2, ch. 25, § 83.</p> <p>The case therefore presents the question whether, for a crime, committed in another State, the prisoner can be punished in this. Rev. Stat. ch. 167, sec. 1; Amendments to the Const. U. S. Art. 6 ; Const, of Maine, Art. 1, sec. 6, giving a right to trial by a jury of the vicinity, — viz. a jury “ from the scene of the transaction 1 Chit. Cr. Law, 146.</p> <p>The Constitution of the United States, Art. 4, sec. 2, provides for the surrender of fugitives. So that it is not necessary to enlarge the operation of the statute by construction.</p> <p>2. The judgment must be arrested, because it is not stated when the offence was committed.</p> <p>It is in general requisite to state, that the defendant committed the offence, for which he is indicted, on a specific day and year. Chitty’s C. L. vol. 1, page 217.</p> <p>Every issuable fact must be stated with time and place. The time should be stated with such certainty, that no doubt can be entertained of the time really intended. Chitty’s Cr. L. vol. 1, page 218.</p> <p>It is laid down in all the books which treat of the matter, as an undoubted principle of law, that no indictment whatever can be good without showing the year and day of the material facts alleged in it. 2 Ilawkin’s P. C. chap. 25, sect. 77.</p> <p>3. The instruction refused, should have been given. An act committed beyond the limits of the State, is no offence against the laws of the State.</p> <p>No more reason for charging a man with embezzlement out of the State, than for charging him with larceny or murder, done out of the State.</p> <p>4. The instruction given was clearly wrong. By that instruction the crime is made to consist in the refusal to account; whereas the defendant might have refused to account, and yet have done no wrong within the statute.</p> <p>5. The State where the offence was committed has jurisdiction. A conviction or acquittal here, would be no bar there. 1 Chitty’s Cr. Law, 146.</p> <p>This rule in regard to embezzlement has never been changed by statute.</p> <p>The intention must exist at the time of taking. Hobson's case, 2 Russell, 189, 190.</p> <p>No presumption of a felonious intent, in the taking, can arise from a subsequent embezzlement. Starkie’s Ev. part 4, 826, 827.</p>

<p>On report from Nisi Prius, Howard, J. presiding.</p> <p>Trespass quare clausum fregit, brought against the testator to recover damages for taking away the plaintiff’s boom. The general issue with brief statement was pleaded.</p> <p>Documentary and oral evidence was introduced by the parties. The case was then submitted to the full Court with authority to draw inferences of fact, and to appoint an assessor of damages, if there should be any occasion for an assessment.</p> <p>The evidence showed, that in 1832, Mrs. Olive Rollins leased to Usher and Weston, acting in behalf of the Kennebec Boom Corporation, the shore and flats pertaining to her upland farm, for the purpose of catching, and booming logs and other lumber for the term of thirty years, yielding a rent of twenty dollars yearly, but reserving to the corporation a right to surrender the lease after the first year.</p> <p>In 1835, she conveyed the farm to the plaintiff, “ reserving, however, for the time being, the flats and shore which I have leased to the Kennebec Boom Company.” She also, on the next day, assigned the lease to the plaintiff.</p> <p>In 1832, the corporation acting under their lease, erected a boom on the flats and in the tide waters of the river, and occupied it until 1842. In the spring of that year all the right, title and interest of the corporation “in audio said boom and piers,” was sold on execution to Henry T. Clay, who has since continued to occupy the boom.</p> <p>In Feb’y, 1847, the plaintiff notified Henry T. Clay and one Lancaster, to discontinue their occupation of the shore and land. In April of that year, the plaintiff erected a boom within the boom occupied by Clay, of nearly the same shape and size of it, and extending the whole width of the plaintiff’s land. This inner boom collected and retained nearly all the logs which would have come into the larger boom. In June of the same year the testator, by direction of Henry T. Clay, removed the inner boom. It is to recover damage for that removal, that this suit was brought.</p> <p>Subsequent to the suit, Usher and Weston, by separate instruments, released to the plaintiff all their respective rights in the premises.</p> <p>In May 22, 1847, Samuel E. Crocker and Elijah Jackson, acting as directors of the corporation, licensed Henry T. Clay and said Lancaster, for a term till countermanded, to occupy the boom with the shore and privileges, secured to the corporation by Mrs. Rollins’s lease.</p> <p>Crocker and Jackson were members and a majority in number of the last board chosen by the corporation, and their election was made more than five years before the alleged trespass. During all that time, the corporation had ceased to do business, and they never voted to authorize any sale or conveyance of their interest in the shore or flats. Some of the particulars in the evidence are recited and commented upon in the opinion, given by the Court.</p> <p>The title to the locus in quo is in the plaintiff. Neither the executor nor Henry T. Clay, under whom he professed to act, had any right to maintain any boom in front of the plaintiff’s land.</p> <p>I. Whatever right the corporation had under the lease was abandoned. The lease reserved the right to abandon after one year. From 1842 to 1847 they had no occupation. Hence a resistless inference, that they had availed themselves of the reservation, and given up the contract.</p> <p>II. Even if the lease had not been abandoned by the company, Henry T. Clay had no right under it. The oificer’s sale to him was ineffectual. It was merely of a chattel, the hoom sticks and chains. It did not purport to convey the franchise or any thing held by the lease. H. T. Clay in no way connects himself with the lease.</p> <p>III. Henry T. Clay could take no available interest under the assignments of Usher and Weston.</p> <p>1. They had no rights ; the lease was not to them, but to the corporation.</p> <p>2. If they had rights, their assignment of them to H. T. Clay and Lancaster was after the trespass.</p> <p>IY. The attempted license given by Crocker and Jackson was unavailing.</p> <p>1. It amounted to a transfer of property which was essential to all future and further operations of the company. For such a transfer, no vote of authorization was ever passed, and no ratification was given. The power to make such a transfer is not within the incidental powers pertaining to directors.</p> <p>2. The corporation, at the time of the giving of that license, had long been dissolved.</p> <p>3. Crocker and Jackson had long ceased to be directors. Their appointment was but an annual one, and it took place several years before they assumed to make the license.</p> <p>Y. If, without claiming under the lease, Henry T. Clay sets up a tenancy under the plaintiff, that relation was terminated by the notice to quit, given February 1, 1847.</p> <p>In support of these positions the following authorities were cited. 17 Mass. 1; 1 Pick. 45 ; 23 Pick. 216; Story on Agency, chap. 6.</p> <p>The plaintiff had no title. 13 Mete. 523.</p> <p>The corporation had a good title for thirty years under the lease. The deed, under which the plaintiff claims, exhibits that fact. The rights of the corporation all passed by the officer’s sale. A term for years is a chattel. Gay, ex parte, 5 Mass. 419.</p> <p>By R. S. chap. 114, sect. 46, not only the franchise but all other corporate property is attachable on mesne process.</p> <p>By R. S. chap. 117, sect. 2, all chattels real and personal, liable at common law to attachment, and not exempted, &c. may be sold on execution. Comyn’s Digest, tit. Execution, (chap. 4.) “ What things may be taken.”</p> <p>“ So he may extend and sell a term of years.” 8 Coke, 171, a.</p> <p>Erections made on another’s land by his consent, are personal property to be sold as other personal chattels are.</p> <p>By the terms of the lease itself, it was contemplated that other persons might hold under the corporation.</p> <p>The expression “ or any person under them” is twice used in it.</p> <p>If any irregularity or want of form in levying the execution had taken place, which is denied, nobody but the corporation, or some person claiming under them, could take advantage of it.</p> <p>Objections to the regularity of a sale of property on execution cannot be raised by strangers to the execution. Smith v. McGoioan, 3 Barb. Sup. C. Rep. 404.</p> <p>The corporation acquiesced in H. T. Clay’s title, and surrendered possession.</p> <p>The plaintiff also acquiesced and received rent for several terms from H. T. Clay. The corporation never abandoned. It had no right to. The right reserved was only a right to surrender. That could be done only upon giving notice. The sale by force of law will not be pretended as an abandonment.</p> <p>The boom, erected within the boom of Clay, was a private nuisance, which he had a right to abate.</p>

<p>An officer returned that he had attached “ as the property of defendants, all the right, title and interest that they have to a grist-mill, standing in the town of M.” — Held; if it appear that the defendants had an interest in one grist-mill in that town, the attachment was valid to hold that mill, unless it appear, that they had also an interest in some other grist-mill in the same town.</p> <p>Though a debtor, at the time of his indebtment, held a conditional bond for a conveyance of real estate, yet if he had bona fide transferred it prior to the attachment of his interest in the land by the creditor, the attachment is of no effect.</p> <p>Though, after such transfer, the officer having the writ with orders to attach, should neglect to make the attachment, he would not be accountable to the creditor for the neglect even to the amount of nominal damage.</p> <p>If a creditor in taking judgment for a lien claim include with it, in the judgment, another claim, to which no lien attached, the lien is thereby waived and defeated.</p> <p>A stove with its funnel cannot be considered as materials for the repair of a building, within the meaning of the statutes of lien.</p>

On exceptions from the District Court, Rice, J. Indictment, under the Revised Statutes, ch. 162, sec. 13, .for maliciously breaking the windows and window blinds of a dwellinghouse, whereby it was “ greatly injured.” There was testimony that one Robinson owned the house and the land on which it stood. The defendant requested the Judge to instruct the jury, that the statute did not extend to mischiefs committed upon real estate.

Bill in Equity. Certain persons formed an unincorporated association for the manufacturing of scythes. • A code of articles was drawn up for the regulation of the ■company, prescribing the amount of joint capital stock to be $4000, in shares of $100 each, authorizing transfers of shares, and prescribing the mode of transfer, pointing out the mode of voting, and specifying what officers should be appointed, with their respective rights and duties, and among other things,…

<p>"Where articles of property axe liable to a corporation to pay tolls, (such for instance as boomage upon logs,) and the corporation is by law authorized to sell the articles for the tolls at public auction; it seems, that on grounds of public policy, such a sale will pass a valid title to the purchaser; although the proceedings of the officers of the corporation, in relation to the custody of the articles and to the sale itself, are irregular and defective.</p> <p>Thus a boom corporation, having such powers, collected logs, and after those belonging to certain owners had been redeemed and taken away, proceeded to sell at auction all the residue, comprising logs of many different marks, values and ownerships : •—</p> <p>Raid, that a valid title passed to the purchaser, although the proceedings of the officers of the corporation, pertaining to the taking and keeping of the logs and to the sale, were irregular and defective; and although they sold more of the logs of each owner than were necessary to pay the tolls and expenses due upon the logs of such owner, and although the sale was made collectively of all the logs in the boom, without any regard to ownerships, orto the respective amounts due upon them; and although the sale was had, not on the day proscribed in the charter, but on a subsequent day, by an adjournment not provided for in the charter.</p>

Assumpsit, tried before Shepley, C. J. The plaintiffs were an incorporated company. The authority to institute the suit was in question. One Davis, a witness for the plaintiffs, testified, that he was their agent. The Judge instructed the jury, that if Davis was the agent of the plaintiffs and had directed the suit, it could not be defeated for want of authority to commence and to prosecute it. The defendant excepted. 1.

On Exceptions from the District Court, Cole, J. Assumpsit for fuel furnished to the district. The plaintiff’s testimony tended to prove that he furnished the fuel, which was used in the district school, and that he was employed by the lawful agent of the district to furnish it at the expense of the district. A nonsuit was moved for, and was ordered, upon the ground that a school district has no authority to create a debt against itself for the fuel used in the schools.

Writ of entry. One Hilbourne owned the land in 1848. It was then attached, as his property, by the plaintiff, upon a writ which embraced two separate demands; one upon a note for $33,81, and the other upon an account for $39,00. The precept of the writ was to attach property to the value of $ 100. The attaching officer, in his return to the register of deeds, certified that “ the sum sued for was a note, dated, &c., for $33,81.

<p>On Report from Nisi Prius, Shepley, O. J. presiding.</p> <p>Petition for partition of land.</p>

On exceptions from the District Court, Cole, J. Writ of entry. — After the death of the tenant, his administrator appeared voluntarily to the suit, and agreed that the action should be submitted to referees, which was accordingly done by a rule of court. The heirs had neither appeared nor been notified to appear. The award of the referees was, that the demandant recover possession of the land, with costs of reference and of Court.

Exceptions from the District Court, Cole, J. Assumpsit by the payee upon a promissory note. The defendant by brief statement, verified on his oath, pleaded, that in the note certain specified sums of usurious interest were included, and consented to be defaulted for the residue, which was accordingly done. The Judge ruled, that costs should be allowed the defendant, and that no costs should be allowed to the plaintiff, who thereupon filed exceptions. 1.

<p>On Report from Nisi Prius, Shepley, C. J.</p> <p>The case was submitted without argument.</p>

On Report from Nisi Prius, Shepley, O. J. This and an earlier action, were brought by the plaintiffs against the defendants, founded upon R. S. chap. 32, sect. 29, for the support of the same pauper. They were pending at the same. time. The earlier one was referred. The award, which was against the plaintiffs, was accepted and the defendants recovered their cost. This action then came up for trial. It was for supplies furnished prior to the commencement of the first suit.

<p>The statute of limitations provides that, if there be two or more joint contractors, no one of them shall be chargeable by reason only of any acknowledgment or promise made by any other of them.</p> <p>Though an action upon a note against the principal would be barred by the statute limitation; yet that limitation would be no bar to a suit against the principal for reimbursement, brought by the surety, who had paid the note before the limitation attached to it.</p> <p>A surety, by making a partial payment on the note, had extended its vitality as against himself. After the limitation upon the note had attached as to the principal, but within six years from the time of the partial payment, a suit was brought upon the note against the surety for the balance. Held, the principal was inadmissible as a witness for the surety, because of his accountability over to the surety, notwithstanding the statute of limitation. Note. — Howard, J., having been of counsel, did not act in the decision of this case.</p>

<p>On Report from Nisi Prkts term, Shepley, C. J. presiding.</p> <p>Trespass for entering and cutting trees upon the plaintiff ’g land.</p> <p>The land had been conveyed to the defendant’s wife. The plaintiff’s counsel asserted that the defendant had paid a part of the consideration money. The plaintiff levied and set off the land to himself, in fee, upon an execution against the defendant. The defendant refused to appoint an appraiser. The officer’s return stated that the appraisers were disinterested men; but it is to be considered as proved, that one of them was uncle to the defendant’s wife, if proof of such fact would be admissible against the plaintiff’s objection. A part of the land was cultivated; the residue was in its natural state, covered by a growth of trees. The defendant, by authority of his wife, entered upon the land and cut trees; but it did not appear that he entered upon the cultivated part.</p> <p>The case was submitted to the Court for decision. If the plaintiff can sustain the suit, and is entitled to recover any thing more than nominal damages, the amount is to be ascertained by a jury.</p> <p>I. The levy was void, one of the appraisers having been related by affinity, within the sixth degree, to the defendant. R. S. chap. 1, sect. 3, rule 22.</p> <p>This relationship is proveable by parol. The officer’s return, that the appraisers were “ disinterested,” does not preclude the defendant from introducing such proof. The return is conclusive only of such facts as it alleges. Its affirmation that the appraiser was disinterested, is not, in effect, an affirmation that the relationship did not exist. Such relationship is an independent fact, not controlled by the officer’s return. 14 Pick. 123 ; 11 Maine, 491; 6 Maine, 350.</p> <p>It has been urged, on the other side, that interest is inferrable from relationship, and that, therefore, the officer’s denial of the appraiser’s interestedness, is equivalent to a denial of the relationship.. But we hold that such an inference cannot be drawn from the position, even if admitted, that interest is inferrable from relationship.</p> <p>Because interest may be inferred from relationship, is it true that therefore there can be no relationship, where there is no interest i Relationship is a disqualification, as much as interestedness is, and is no more merged in the term interestedness, than the latter term merges the “ discretion” which is also -required by the statute.</p> <p>Three qualifications are requisite, disinterestedness, discretion, and the absence of relationship. How can the officer’s return, that a man possesses two of these qualifications, be held as an allegation that he also possessed the third ? The declaration of the statute is not, that a person related shall be regarded as interested, or that the fact of relationship shall even be evidence of interest. On the other hand, the relationship alone is an absolute disqualification. 11 Maine, 491; 30 Maine, 155.</p> <p>The proof of relationship, therefore, is not in conflict with the officer’s return.</p> <p>Even if the return creates a presumption of all want of relationship, it is but a presumption, and, like other presumptions, may be repelled and overcome by proofs.</p> <p>II. There is a further reason why, in this suit, the officer’s return is not conclusive. The wife of Gammon owns the land. She is the real defendant. A recovery by the plaintiff would be a bar to an action, for the same trespass, brought against her, or against her jointly with her husband. Chit, on Plead. 8th Amer. ed. 88.</p> <p>The parties to this suit, then, are different from the parties to the levy. In such a case the officer’s return may be disproved. 11 Mass. 163 and 463 : 17 Mass. 433 ; 7 Pick. 551; 30 Maine, 155.</p> <p>III. The plaintiff’s counsel declared that, when the land was conveyed to the wife, the defendant paid a part of the consideration money. This admission is to be regarded as a fact in the case. The husband and wife, then, were joint purchasers, the wife holding a part in trust for the husband. The whole would belong to the survivor. A levy made by metes and bounds, as this was, upon the fee of a part only of land held in joint tenancy, is merely void. 2 Paige, 132 ; 14 Mass. 407"; 5 Mass. 521.</p> <p>1Y. The land belonged to the wife, and the defendant entered and cut the trees by her direction. He did not enter upon the cultivated part of the land. He did nothing which could impair or lessen the plaintiff’s pretended right to the rents and profits under the levy against the husband, who had, on the plaintiff’s own hypothesis, but a life estate. The plaintiff had no right to cut the trees, no interest in them. They belonged, not to the life estate, but to the inheritance. There was then no invasion of the plaintiff’s rights. By implication of law, there was reserved to her the right to save her own property ; and for that purpose to enter and take the trees, which pertained to the inheritance. The plaintiff’s possession, (if any he had,) of the uncultivated part of the land, was a qualified one, limited to the mere purposes of taking wood for fires and for repairs. It was not such a possession as to exclude the reversioner from using that part of the trees which belonged to the reversion. 1 Greenl. 6 ; 10 Mass. 261; 14 Mass. 409; 17 Pick. 248; 19 Maine, 252; 2 Kent’s Com. 130.</p>

On Report from Nisi Prius, Wells, J., presiding. Assumpsit, for the support of Mercy Allen, a pauper. She was horn in Harpswell and resided there about fifty-four years, till 1833. In 1827, she became, and has since continued to be, insane. She had no guardian. In 1833, her brother took - her with him to New Yineyard. He maintained her there at his expense till 1843.

On Report, from Nisi Prius, Wells, J. presiding. Case for an injury to the female plaintiff, by mal-practice of the defendant, in attempting to reduce a fracture of the forearm and dislocation of the wrist. The husband prior to the injury had deserted the wife, and for eight years had made no provision for her support. He resided in the same town, and in co-habitation with another woman.

On facts agreed at Nisi Prius. Writ of entry, with plea of mil disseizin. The tenants have no title. The land was formerly mortgaged by Dodge & Dodge to one Rangeley. The notes secured by the mortgage tvere duly indorsed to the demandant, and are unpaid. The mortgage was also, at the same time, delivered to the demandant. The notes and the mortgage are his property, but the mortgage was not assigned by any writing.

Writ of entry, submitted on facts agreed as follow : — The demanded premises were originally the property of the demandant, and he is entitled to possession unless he has been divested of his title by a sale for the payment of taxes. On the twenty-fifth day of July, A. D. 1838, the selectmen of Weld, in which town the land was, situated, made and delivered to their collector of taxes a warrant in due form, for the collection of the taxes assessed for that year.

Scire Facias. The defendant, at the age of fifteen years, recognized to the State, before a justice of the peace, in the penal sum of #50. Held: &c., “and give evidence on behalf of the State upon the complaint on oath óf S. N. against J. W. for the crime of a felonious assault.” She neglected to appear, and this suit is brought to recover the penalty of the recognizance.

On Facts agreed at Nisi Prius. Replevin for a mare. One Rose hired a horse in Portland to go to Lewiston. He feloniously or fraudulently” carried the horse through Lewiston to Readfield, and there exchanged him with Furbush, for another horse. He then exchanged the Furbush horse with the plaintiff for the mare now replevied. He afterwards exchanged that mare with the defendant, for another horse.

On Report from Nisi Prius, Wells, J. presiding. Writ op entry, for a “ lot of land numbered three, being the farm on which Peter Wyman formerly lived.” The demandant made title under a deed of warranty from Peter Wyman to Benjamin Hilton.

Exceptions from the District Court, Rice, J. Assumpsit upon a note. Hiram Hill, at his decease, left property to his minor children. The plaintiff was administrator of his estate. A guardian was appointed for the children; but, after serving some time, he resigned the trust. The plaintiff was then appointed by the Judge of Probate, to be guardian. There was an indebtedness to the minors, upon an obligation against the defendant.

<p>The provision in. the Revised Statutes, chap. 115, sect. 96, which prohibits the allowance of cost in any action founded upon a judgment, if commenced within the time when an execution might have been issued thereon, was prospective only.</p> <p>in such an action, commenced within such time but prior to the Revised Statutes, it was not erroneous to allow cost, although such action did not come to judgment till after the passage of the Revised Statutes.</p>

Exceptions from the Dictrict Court, Rice, J. Trespass for a horse. It appeared in evidence, that R. M. Baker, in the fall of 1846, sold the horse to the plaintiff, and in the spring of 1847, also sold him a lot of store-goods.

On Report. Writ op entry for a twenty-eight acre lot of land. One Withee owned it in 1837, and then conveyed it by a deed under which the demandant holds. Two days, however, before that conveyance the tenant attached all Withee’s land lying within the county, by virtue of a writ, in which the ad damnum was set at $150, and the officer was commanded to attach property to the same amount. That action was pending nearly ten years.

On Report from Nisi Prius, Howard, J. Debt. — The plaintiff and two other persons were entitled to the use of three quarters of a shingle mill. They made a claim upon the defendant for erecting obstructions in the stream, whereby the water was diverted from their shingle mill to his tannery. The plaintiff, owning the mill privilege, also made a claim for the “ permanent injury done to it by reason of the obstructions aforesaid.” These claims were submitted to arbitrators.

On Exceptions, from Nisi Prius, Howard, J. presiding. Writ oe Entry. At the return term, the tenant moved, and the Court ordered, under R. S. chap. 145, sect. 5, that the demandant, by the middle of vacation, should file a statement of the title upon which he relied, and the. origin of it. Leave was, at the same time, given to the tenant to plead non tenure. The action was then continued.

Bill in Equity. The allegations of the bill are in substance as follow : — In April, 1832, Ephraim Watson was owner of the west half of lot No. 20. He then gave one Hamilton a bond to convey the same to him on the payment of a stipulated sum.

On Exceptions.— The officer returned upon the writ, that he had attached a chip. The defendant pleaded in abatement the want of due service of the writ. To that plea the plaintiff demurred generally. No service other than that prescribed by statute will be sufficient. Peck v. Warren, 8 Pick. 163 — 4. Where goods or estate are attached, a separate summons must be delivered to the defendant, or left at his last and usual place of abode. R. S. chap. 115, sect. 24.

Trespass, quare clausum. The action was commenced before a justice of the peace, and was appealed to the District Court. The general issue alone was pleaded. A verdict was rendered for the plaintiff, and the defendant appealed to this Court. It was here dismissed for the reason that the last appeal was unauthorized. That ruling was excepted to by defendant.

<p>A debt due to tbe defendant from tlie plaintiff jointly with others, cannot be set off in a suit at law.</p> <p>Eights to a set-off in a suit, wherein an executor or administrator is a party, are the same that would have existed, if all the parties interested had continued in life.</p>

<p>Of tire evidence and of the conditions upon which reviews may be granted»</p>

Petition for a writ of certiorari. An application for the establishment of a highway, was presented to the County Commissioners, at the term of their court, in March, 1846. They examined the route in August; located the way in September; and returned their report of the same to their court, at its October term, 1846.

<p>A vote to liiro money, passed by a school district, at a meeting of which no previous notice had been given, creates no liability upon the district to repay money borrowed in pursuance of the vote.</p> <p>A vote, subsequently passed, though at a meeting legally called, “ to pay the debts due from the district,” is no admission of indebtedness for money hired under the vote passed at the previous and unauthorized meeting.</p>

<p>On Exceptions from Nisi Prius, Howard, J., presiding.</p> <p>The plaintiffs owned a mill for the manufacture of starch. They quit working it, December 8, 1847. On the 10th of the same month, they applied to the defendants for insurance against fire. In the application were the following statements;— “We have got through manufacturing of starch for this season.” “ We keep a watch the whole time we are manufacturing starch.” The defendants issued a policy December 14, 1847, containing among other things the following words ; “ conditional that a suitable watch be kept while manufacturing starch.” The mill was destroyed by fire, December 31, 1847. This action is assumpsit, brought upon the policy, to recover for the loss.</p> <p>It was proved that, on the 8th December, a small quantity of starch was left on the racks for want of a cask to put it in. There was no direct proof that the drying of that starch had then been completed. On the 31st Dec. in the forenoon, in order to expel from it the moisture which was remaining in it, when first left upon the racks, or which had been subsequently imbibed, a clerk of the plaintiffs, a lad of about 18 years of age, by their direction, built a fire in the furnace. He then left the mill for some time; afterwards returned and replenished the fire and went away, about half an hour before the fire, which consumed the mill, was discovered. The clerk, though frequently at the mill, was not proved to have had any experience in manufacturing. A witness, experienced in the business, testified that, in order to the keeping of a suitable watch, the mill is to be in charge of the workmen during the daytime, and some one is to sleep in it by night, and that “ a person unacquainted with starch is not so suitable for a watch, as one acquainted with the operation of manufacturing.” There was other evidence upon the same point.</p> <p>For the purposes of this trial, the Judge instructed the jury: —</p> <p>1st, that the drying out of the moisture, imbibed or remaining, as testified to, should be considered as a manufacturing of starch'; —•</p> <p>2d, that, if starch was put into the mill to dry, requiring the same fires as starch in the original process of drying in the manufacture, it might be considered as part of the process of manufacturing ; —</p> <p>3d, that the term suitable watch, as used in the policy, means the presence of a suitable person at the mill, at all times during the manufacture of starch, in readiness to extinguish the fire by suitable means.”</p> <p>. The verdict was for the defendants, and the plaintiffs excepted.</p> <p>.1. It was for the jury, not for the Court, to determine whether drying out the moisture, imbibed by the starch was a part of the process of manufacturing.</p> <p>2. But if it were for the Court to determine, there was error in the ruling, that: drying out moisture imbibed by the starch, was a part of the process-of manufacturing starch. Paper, leather and boards are articles manufactured. But thei drying out of the moisture from them is no part of the manufacturing process.</p> <p>3. There was error in- the Judge’s definition of the term “ suitable watch.” The jury, from the evidence in the case, should have been permitted to determine what would have been a suitable watch, and whether such a watch was in fact kept.' They should, in determining it, have regard to the price paid fob the insurance,- to the condition and situation of the mill, and the opinion of experienced men. Chase v. Eagle Insurance Company, 5 Pick. 51; Smith v. Dennie, 6 Pick. 262.</p> <p>The first instruction was correct.</p> <p>The ihanufacture of starch is not completed, until the same' is dried sufficiently to be put into casks for exportation. Drying is the most dangerous part of the manufacturing process. There was the same risk in drying on the 31st of December, as would have been on the 8th. Cases cited, 1 Esp. N. P. 66 and 67. The suppositions of counsel as to the drying of other manufactures are inappropriate.</p> <p>The second instruction was correct.</p> <p>The condition that there should be a suitable watch, was a part of the written contract, and to be construed by the Court according to the situation of the parties, and the subject matter. Sumner, admr. v. Williams, 8 Mass. 214; Fowle, v. Bigelow, 10 Mass. 379; Hopkins v. Young, 11 Mass. 302.</p> <p>Oral testimony is not admissible, to contradict, vary or materially affect, by way of explanation, any written contract, whether under seal or not, if the contract be perfect in itself, and be capable of a clear and intelligible exposition from the terms of which it is composed. Stackpole v. Arnold, 11 Mass. 27; Baker v. Prentiss, 6 Mass. 430; Richards v. Kilhamj 10 Mass. 239; Hunt, adm’r, v. Adams, 7 Mass. 518 ; Higginson v. Dali, 13 Mass. The case of Murray v. Hatch, 6 Mass; 465, upon a policy of insurance, sustains the principle contended for.</p> <p>Was the instruction that “ the term, suitable watch, as used in the policy, means the presence of a suitable person at the mill at all times during the manufacture of starch, in readiness to extinguish fire by suitable means f such as should have been given ? The subject of the contract, and the obvious design and purpose of introducing these words, is an essential element in the construction.</p> <p>Insurance in this case, was upon a mill constructed purposely for the manufacture of starch, the last operation of which, was drying the starch filled with water, in the previous processes of the manufacture, requiring a high temperature, and long continued, increasing danger of conflagration. If a suitable watch were kept, that danger would be very much diminished. And what would this suitable watch be expected to do? If the building caught fire during the time of danger, was he to look on and see the building consumed ? If that was the duty, we admit that, in this case it was fully performed, and that too, with no inconvenience, and at a safe distance.</p> <p>But the instruction to the jury conveyed the exact import of the words, “ suitable watch.” The watch was to be maintained in the time of danger. A watch without “suitable means ” of extinguishing fire, would have been of no use.</p> <p>But if it were for the jury to decide, their conclusion was correct, and in accordance with the opinion of the witness, given by him as an expert. In fact, however, no watch of any kind was kept.</p>

Brown, in 1850, brought an action against Jewell, before a justice of the peace, of the county of Somerset. The action was indebitatus assumpsit, upon an account annexed to the writ. The only account annexed to the writ, was one against Maria Luce, for a balance due, $10,98. Jewell did not appear before the justice, but was defaulted, and judgment was rendered against him for ten dollars ninety-eight cents, damage, and cost two dollars thirty-two cents.

Review. In an action, brought by one Moore against Farwell, the District Court had ordered a nonsuit. Moore filed exceptions, and recognized with Merrick as surety, in the sum of $200, to prosecute, &c. The exceptions were overruled, and Farwell’s costs were taxed, $27,36, at the term of this Court held in June, 1847. Of these costs, $3,30 accrued after the filing of the exceptions.

<p>Ojsr Exceptions from Nisi Prius, Howard, J. presiding.</p> <p>Writ oe Entry.</p> <p>One Lancey gave several notes to Preston, and for security, mortgaged to him the land now in question.</p> <p>Preston was decreed a bankrupt. In his schedule of assets, he inserted among other things, the following item; “ sundry notes, about one hundred and forty-six, in number, mostly outlawed.” No mention was made of the mortgage.</p> <p>His assignee in bankruptcy, having obtained leave to sell the bankrupt’s estate, “as it was set forth in the schedule,” made sale by deed to this demandant of all Preston’s right in said mortgage, and in the notes therein described. The deed recited no copy of the decree of bankruptcy, or of the appointment of the assignee.</p> <p>The tenant moved for a nonsuit. The demandant moved for a continuance. The continuance was refused, the non-suit was ordered, and the demandant excepted.</p> <p>The bankrupt’s estate vested in the assignee. As owner he had right to convey it. One of the elements of property, is its alienability. The asking of leave to sell, was unnecessary. The omission by the assignee, in his application for such leave to specify the mortgage rights, was therefore immaterial. Jewett v. Preston, 27 Maine, 400.</p> <p>But it is objected that the 15th section of the bankrupt law requires the assignee’s deed of land to recite a copy of the decree of bankruptcy, and of the appointment of the assignee.</p> <p>This provision clearly is not applicable to the mere transfer of a mortgage. In most of the States, mortgages are but chattel interests. 4 Kent’s Com. 154, 186; 1 Blackf. 137; 11 Pick. 485, 488; 2 Halstead, 411. It could not therefore be the intention of Congress to treat mortgages as lands.</p> <p>The notes from Lancey to Preston were transferred, by the deed to the demandant.</p> <p>By the same deed, the mortgage was assigned, not as growing out of the transfer of the notes, but by its distinct and independent conveyance of the right of redemption.</p>

Exceptions from the District Court, Rice, J. Assumpsit against two persons upon a note, on which was due $130. The plaintiff made affidavit of his belief that they were about to. depart and reside beyond the State, and to take with them property, &c. One of them was arrested and gave bond for his enlargement, as provided by R. S. chap. 148, sect. 17. The bond was in the penal sum of $200. One Fowler was a surety.

Scire Facias in the District Court, brought upon a recognizance for the appearance of a person charged with crime. The defendant demurred to the scire facias, and judgment was rendered, sustaining the demurrer. The County Attorney appealed to this Court, but no recognizance to prosecute the appeal was entered into.

Certiorari. Dyer, Lowell, Hamblet and others, were owners of a township of wild land, as tenants in common, in different proportions. Lowell and Hamblet had caused their proportion to be set off in severalty. Dyer had obtained leave to issue a writ of certiorari, for the purpose of quashing the partition. 30 Maine, 217. The writ was accordingly issued, and entered at the June term oí this Court, 1850. No new assignment of errors was made.

<p>On Exceptions.</p> <p>Assumpsit by the indorsee against the makers of a promissory note, dated in 1837. It had, in the place where attestations are commonly written, the name of Wm. Farnsworth, but without any word or expression indicating for what purpose it was placed there. Limitation was pleaded.</p> <p>The plaintiff called Wm. Farnsworth as a witness. He was objected to from interest and being placed on the voir dire testified, that he took the note as the agent of the payee, but had no interest in it. He was then admitted and testified that at the time the note was made, he signed his name thereon as a witness, in the presence of the makers, but that he was not requested by either of them to do so.</p> <p>The defendant requested instruction to the jury, that the words “ Wm. Farnsworth” so written, did not give to the note the character of a note, “signed in the presence of an attesting witness.” The instruction given was, that if Farnsworth saw the execution of the note by the makers, and at the time and in their presence, signed as a witness to that transaction, the note was not barred by limitation. The defendant excepted.</p> <p>Is this a note, signed in the presence of an attesting witness,” within the meaning of the Revised Statutes ? What is meant by an attesting witness ? Usage has settled it. It is one who writes his name, with some word, (such as witness, attest or test,) to indicate the purpose of the signing. The mere locality of the signature is of no importance. Farnsworth is to be considered one of the joint makers, and, if sued jointly with the others, he could not have been a witness-But by his own statement, he wrote his name upon the note, without the request of either of the defendants. Such a signing upon a note, without the knowledge or assent of the makers, does not give it the character of a note, “ signed in the presence of an attesting witness.” Starkie on Ev. (Ed. 1828,) Part 2d, p. 340; 4 Taunt. 220; 3 Camp. 232; 29 Maine, 298.</p> <p>In all the cases in the books, (with one exception) the subscribing witness is represented as signing in that character. And it is respectfully contended, that the, mere signing of the name upon the paper with or without a designation of the character in, which he signs, without the consent and request of the parties, does not give the paper the character of a witnessed instrument. It must require the consenting will of the parties, to be inferred, perhaps, in the absence of all proof, but not in the teeth of contrary proof. Houghton v. Mann, 13 Mete. 128; Kinsman v. Wright, 4 Mete. 219; Drury v. Yannevar, 1 Cush. 276 ; Smith v. Dunham, 8 Pick. 246 ; Gray v. Bowdoin, 23 Pick. 282.</p>

Dunlap, in a writ of review, in which the ad damnum was set at $80,00, instituted in the District Court, and brought here upon exceptions.

Exceptions from the District Court, Rice, J. Indictment for a defect in the county road. The record of the County Commissioners shows that they did not record their location at the next term of their court. The defendant requested the Judge to instruct the jury that the record did not prove a legal establishment of the highway, and that, on this branch of the case, the defendants were entitled to the verdict.

Report from the District Court. The plaintiff had brought an action against the defendant, before a Court in Massachusetts, and the officer had returned upon the writ in that suit, as follows: — ■ “By virtue of this writ, I attached the property in the rooms occupied by the within named Mann, consisting of office furniture, vials, &c., and placed the same in custody of a keeper, but subsequently was directed by plaintiff and plaintiff’s attorney to discharge the keeper and…

<p>The flowing of land by a reservoir dam, at distance from tlie mill, will not support a complaint which, alleges that the flowing was occasioned by the dam at the mill, though the reservoir dam is maintained, merely to supply water for the mill.</p> <p>Such a complaint may be amended, on terms, so as to charge that the flowing is occasioned by the reservoir dam.</p> <p>Note. —For the report of this and of the following ease, the Reporter acknowledges his indebtment to the kindness of a legal gentleman of Bangor by whose labors two of the earlier volumes of the Reports were so much enriched.</p>

<p>Of tlie causes, for which a new trial will be granted.</p>

On Exceptions from Nisi Prius, Tenney, J. presiding. The case was tried before the jury in 1850. Assumpsit to recover for supplies furnished to one Thad-dens Trafton a pauper, who once had a settlement in Simple igh. The defendants contended, that on the 23d of Feb’y, 1828, (the day on which the town of Wellington was incorporated,) the pauper gained a new settlement by residing in that town.

<p>On facts agreed.</p> <p>Trover. The statement presents, in substance, the following facts: —</p> <p>The plaintiffs were proprietors of a township of timbered land. They conveyed it to ffm. McCrillis, his heirs and assigns, to be paid for at several successive periods, and upon a condition, that the conveyance should be void, if such payments should not be made. The grant reserved, toward payment of the purchase money, a lien of five dollars upon each thousand feet of the lumber which he should take from the tract, and authorized timber to be cut subject to such lien. McCrillis made a contract with Haynes & Co., by which they were to cut, haul, and drive to the boom, a large quantity of logs from the land at stipulated prices to be paid by him. They employed many laborers to cut and haul. These laborers were divided into four gangs, each of which worked upon distinct parts of the township, and hauled the logs which they cut to separate landings. There was no connection between any of these gangs in their operations.</p> <p>All the logs at the four landings were marked alike.</p> <p>The logs were driven down the river by Haynes & Co. When arrived at the boom, they had become intermixed, so that it was not possible to tell which of them had been drawn to either of the four landings.</p> <p>With a view to enforce the lien, given in such cases by the statute of 1848, the said laborers seasonably instituted their several suits for their services against Haynes & Co. Upon the writs in those suits, the logs were attached, and were sold upon the writs according to law by a deputy sheriff. The suits are yet pending.</p> <p>In one of those suits, William McMaster is the plaintiff. In his account, annexed to the writ, is a charge for his labor and also a charge of “ $6,37, for cash expended in getting into the woods.”</p> <p>For the aforesaid doings of the deputy sheriff, this action of trover is brought against the sheriff by the grantors of McCrillis, who claim the logs, the condition in their deed to him having never been performed.</p> <p>The word “lien,” as used in the plaintiff’s grant to McCrillis, has received a judicial construction. It imports that the grantor, by reserving such a lien, is the legal and entire owner, till the lien is discharged by payment. Bradeen v. Brooks, 22 Maine, 463; Oakes v. Moore, 24 Maine, 214.</p> <p>All our lumbering operations are conducted with reference to this principle. When the plaintiffs stipulated for a lien, they used the word in the sense in which it was understood by the community, and with reference to the construction which had been given it by the Courts. The first point which we make, is this — that the license given by the plaintiff to McCrillis, was not assignable; that Haynes, who operated upon the town by virtue of a contract with McCrillis, was a trespasser, and that the rights of the plaintiffs are not to be affected by any of his acts. The plaintiffs were the owners of the town and conveyed it to McCrillis conditionally. The condition was never performed.</p> <p>If no license to cut timber had been given to McCrillis, what would have been the rights of the parties before the Court, supposing all the other facts to be as they are now presented. McCrillis would have had no right to cut timber, and of course no person under his authority, or by his direction. Haynes would have been a trespasser, and so would the laborers whom he had employed. It is idle to pretend that in such a case the laborers could have a lien upon the logs, on account of their personal services.</p> <p>McCrillis had authority to cut timber, but the question is, what right had Haynes ? He claims to have had authority through McCrillis, but McCrillis had no power to grant him authority. It is well known that the success of a lumbering operation depends in an especial degree upon the skill and prudence with which it is conducted.</p> <p>When the plaintiffs gave to McCrillis a license to cut timber, they believed that he would manage the operation with skill and fidelity, and that whatever lumber was cut would be faithfully accounted for.</p> <p>Now, the plaintiffs say, and this is their argument, that Haynes did not manage the operation with skill or fidelity • that he hired many more men than were needed; that the men did not do half the labor which they ought to have done; that a large portion of the logs have been secreted, and that the wages of the men amount to more than the value of the logs.</p> <p>Was, then, the business given by the plaintiffs to McCrillis assignable? If not, then Haynes acquired by his contract with McCrillis, no rights as against these plaintiffs, and he, and all the men who worked under him must be considered trespassers. In Emerson v. Fislce, 6 Maine, 200, it was held that a license to cut timber on the land of the grantor is not assignable.</p> <p>The defendant may contend that, in legal effect, the timber was cut by McCrillis, Haynes acting only as his agent. We deny that Haynes can in any manner be considered the agent of McCrillis. He entered upon the trust by virtue of a contract with McCrillis, agreeing to cut and remove timber at a certain price per thousand; McCrillis surrenders to him the sole control and management of the operation. The arrangement is liable to all the objections which have been mentioned. If the license given by McCrillis to Haynes be good, then the plaintiffs’ property is to be holden for the acts of Haynes, though he may have conducted imprudently, or dishonestly.</p> <p>When the plaintiffs gave authority to cut timber, they were well acquainted with the law which gives to laborers upon logs a lien on them, and they did not contemplate that any person but McCrillis, was to have the right to create claims upon their property. By giving him authority to cut timber, they of course gave him authority to hire men, and in that way, perhaps to create liens upon their property, but they did not intend to give that authority to any one else. It was a personal trust not to be transferred.</p> <p>When McCrillis attempted to give such a license, he exceeded his authority.</p> <p>The plaintiffs regard Haynes and all who worked under him as trespassers.</p> <p>By looking at the account of William McMaster, one of the men who sued, we find he claims to recover, not only for his labor on the logs, but also for “expenses, getting into the woods, 06,67.” It is a rule of law that, where one unites a claim that is privileged with one that is not, he places them both on the same footing, and waives or abandons all pretensions as a privileged creditor. Now ivhen McMaster claims to recover by one judgment, for labor upon logs, and for expenses of getting into the woods, he joins a demand that is privileged with one that is not.</p> <p>At all events, then, the defendant is liable for the logs sold on McMaster’s writ.</p> <p>There were various other writs against Haynes, but in all of them, except that of McMaster, the plaintiffs claim only for labor.</p> <p>Admitting that Haynes was rightfully upon the land, the plaintiffs contend that at the time the attachments were made, the logs were not in such a situation that the hens of the laborers could be secured. The logs were at one time the property of these plaintiffs, and it is incumbent upon the defendant to show by what authority they were taken from them. He alleges that the plaintiffs in the several suits referred to, had a lien upon them by reason of their labor, but he fails to prove that the identical logs sold, were the logs upon which any of said plaintiffs performed labor. There were four teams a.t work, all upon separate and distinct portions of the tract. Each team had a distinct crew of men attached to it, and they hauled to separate and different landings. If we go to the common law to ascertain the meaning of the word lien, we find it laid down that it is used to signify the right of detention which artisans and others, who have bestowed labor upon an article, or done some act in reference to it, have, until reimbursed for their expenditures and labor bestowed upon it. Oakes v. Moore, 24 Maine, 219. In 2 Kent’s Com. 634, it is said that a general lien is the right to retain the property of another for a general balance of accounts, but a particular lien is a right to retain it only for a charge on account of labor employed, or expenditures bestowed upon the identical property detained.</p> <p>Now it was perceived by the Legislature that it would be impossible for laborers upon logs to retain possession of them until paid for their services, and it was therefore provided that •the lien might be secured and perfected by attachment. It is fair to presume that in every respect, except the retaining of possession, the Legislature intended to give the word the same meaning which it had at common law; to wit, a claim upon an article on account of labor or expenditures bestowed upon it.</p> <p>The language of the statute is, that any person who shall labor at cutting, hauling or driving masts, spars or other lumber, shall have a lien on all logs and lumber which he may aid in cutting, hauling and driving as aforesaid for the amount stipulated to be paid for his personal services. It will be borne in mind, that the claims of the laborers in this case are all for cutting and hauling. None claim for driving. Can a laborer, who worked in one team only be said to have aided in cutting and hauling all the lumber which was cut and hauled by the other teams ? The laborers are undertaking to deprive the plaintiffs of their lien, not by virtue of any contract, but by a statute of the State, a statute which takes the property of one man to pay the debt of another. For these reasons the statute should be construed strictly. No laborers had a lien on any logs, other than those cut and hauled by the team in which he worked.</p> <p>If it was practicable for the laborers to secure their claims by attaching the logs, upon which they actually worked, they cannot be permitted to resort to other logs.</p> <p>In order to show to what difficulties and absurdities we should be brought by allowing the construction which the defendant contends for, we will suppose that Haynes had received a permit to cut logs upon a township adjoining the one owned by the plaintiffs ; that he had hired men for that purpose, and that all the logs cut had been marked with the same mark, although hauled to different landings. The townships being owned by different persons, it cannot be pretended for a moment that the logs cut on one town could be holden to pay the expenses of labor in cutting logs on the other town. Suppose both towns had been owned by the same persons, and Haynes had been authorized to cut spruce logs upon one, and pine logs upon the other, and that the expenses of labor in cutting the spruce logs exceeded in amount the value of the logs. Will it be pretended that the men who worked upon the spruce logs, would have a right to satisfy their claims out of the pine logs on which they did not work ?</p> <p>It may be said, that the logs were all marked with the same mark, and that it is impossible for each man to identify the logs on which he worked. But that is not the fault of the plaintiffs, they remain the owners of the logs until their stumpage or lien is paid and discharged, they had nothing to do with the operation, with the cutting or marking. If the laborers had taken proper precautions, there would have been no difficulty in identifying the logs and securing their claims, they could have put a private mark upon the logs, or they could have attached before the logs were driven to the boom, and while they remained at their landings. The doctrine of confusion of goods has no application to such a case as this. The lieu attaches only to the property on which the work was done, and cannot be transferred to any other property.</p> <p>But there is a broader view which may be taken of the whole question, one which goes to the very gist of the whole matter, and which we think fatal to the defendant’s case. How far docs the laborer’s lien extend, and whose rights shall be affected by it ? There is a construction to be given to the statute which will in some way limit it. It is not to be taken in the extended sense in which it reads. It cannot be pretended, that if the laborers are trespassers or the person under whom they work is a trespasser, the statute would give them a lien. Some limitation then is to be made to the general words of the statute, and what shall that limitation be ? The sale by the plaintiffs was conditional. It was to be a sale, provided McCriilis paid his notes at maturity, which was not done.</p> <p>Our. construction of the law is, that the laborer’s lien extends only to such interest in the logs, as the operator acquires by the conditional sale to him.</p> <p>The laborers claim to hold the logs because they have bestowed labor upon them, and increased their value. So far as the plaintiffs are concerned, their value is not increased; they sold the logs for what they were worth standing and growing. For any increased value in cutting and transporting the timber to market, the laborers are justly entitled to it. The price at which the timber was sold should first be paid, and whatever the balance may be, should be holden to the laborers. The law was intended for the protection of the laborers against all claims created by the operator in cutting and removing the timber, but it was not intended to take the property of one man to pay the debt of another. It was not intended to secure the laborers their pay, by doing injustice to other individuals.</p>

<p>In a suit by an officer upon a receipt given for property attached, the officer’s return upon the execution, that he seasonably made a demand upon the receipter, is not an act required in his official duty, and therefore is not evidence.</p> <p>When the promise contained in such a receipt is, that the property shall be delivered “ on demand,” the demand is a condition precedent.</p> <p>Inability of the receipter to redeliver the property does not waive the necessity for a demand, in order to fix his liability.</p>

<p>When a grant of land, made jointly by Maine and Massachusetts, contains a reservation for the support of schools and of public worship within the tract, the right and duty of protecting the reserved part against trespassers belong exclusively to this State, until the beneficiaries shall come into being.</p> <p>The fee of one-half of such reserved land is held by this State in trust.</p> <p>The State has-the right of causing the reserved part of the tract to be severed from the residue by a course of prescribed proceedings, and to be set off into lots, for the purposes specified in the grant.</p> <p>By the prescribed notice given to the grantees of the residue, and by the opportunity given them to be heard in the proceedings for the separation, they are bound by the proceedings in the process.</p> <p>It is not competent for such grantees, after the separation of the lots, to object that Massachusetts was not a party to the process.</p> <p>The lots, when thus set oif, are deemed to be in the legal possession of the State, until vested in those for whoso benefit they were reserved.</p> <p>In an action brought by the State, for trespass upon such lots, the whole damage may be recovered, and it is no defence, in whole or in part, that Massachusetts has not joined in the suit, or interposed any claim.</p>

Bill in Equity, inserted in a writ of attachment. Its allegations are, in substance as follows: — William was a dealer in books, and was largely indebted. Henry was his clerk, and knew of the indebtedness. One of the debts was due to the plaintiif on notes and accounts.

On Exceptions from Nisi Pñus, Tenney, J. Trespass for tapping the plaintiff’s aqueduct and drawing water therefrom. In 1829, the proprietors of a tract of land, in the city of Bangor, caused one Bradley to draw a plan of it and to designate streets and building-lots thereon. They then recorded the plan in the registry of deeds.

<p>On Report from Nisi Prius, Tenney, J. presiding.</p> <p>Assumpsit by the indorsee against the maker of a promissory note.</p>

Exceptions from the District Court, Hathaway, J. Trover for a mare. The plaintiff claims under a mortgage made to him by one Garland to secure a note payable Dec. 1, 1847, which is yet unpaid. The mare was left in possession of Garland, and there was evidence, tending to show that by agreement Garland was to keep the possession until the pay-day of the note should arrive.

On Report from Nisi Prius, Tenney, J. Writ oe Entry. Mrs. White, one of these plaintiffs, is the sole heir-at-law of James Webster, under whom she claims, by inheritance, the land in controversy. The demandants allege that it was conveyed by Daniel Webster to said James, by a deed, executed and recorded in 1809. They produced an office copy of such a deed, and it purported to have been witnessed by three persons, and to have been recorded by B. Hall, register.

On Exceptions from Nisi Prius, Tenney, J. presiding. Case, for libel. The plaintiif is one of the firm of Thomas A. White &. Co., consisting of himself and James White, traders in Bangor.

<p>Bill in Equity, to redeem mortgaged land.</p> <p>Kittridge, the plaintiff, in 1835, mortgaged the land to one Benjamin, whose right, by a regular train of conveyances, became vested in the defendant.</p> <p>An entry to foreclose was made July 20, 1846.</p> <p>Kittridge, July 14, 1849, requested of the defendant an account of the sum due, and of the rents and profits. That account was rendered, July 18, 1849, accompained by a written statement, that the defendant recognized no right in the plaintiff to redeem, but claimed that the right of redeeming belonged to himself alone.</p> <p>Kittridge, on the same 18th July, 1849, tendered to the defendant $425, and now brings this bill to redeem against the mortgage. The defendant, to show that the right of redeeming was not in Kittridge, but in himself, proved that Kittridge was decreed to be a bankrupt, on his own petition filed March 10, 1842, and that Kittridge’s assignee, in 1846, conveyed the bankrupt’s right to this defendant, wherefore the defendant denies that the plaintiff has any right to redeem.</p> <p>The plaintiff contends, that notwithstanding his bankruptcy and the said sale made by his assignee, he is still entitled to redeem ; upon the ground that, at the date of his petition in bankruptcy, all his right of redeeming had been'taken from him and sold on execution, and that he afterwards, by purchase, became the owner of that right.</p> <p>, To establish this position he proved, that his said equity was sold and conveyed on execution against him to George Wheelwright, and that the year allowed to redeem against that sale had expired before the petition in bankruptcy ; that, in 1844, Wheelwright conveyed the same to Tasker, and that Tasker conveyed the same to the plaintiff, one half of it in 1845, and the other on July 8, 1846.</p> <p>Of these facts, thus exhibiting an apparent right in the plaintiff to redeem, the defendant undertook to dislodge the effect, by showing that at the time of the petition in bankruptcy, the right of redeeming was held merely in trust for the plaintiff, and that the conveyances of 1845 and 1846, were the mere execution of that trust.</p> <p>For this purpose, the defendant introduced evidence, the character and effect of which are presented in the opinion given by the Court.</p>

On Exceptions from Nisi Prius, Sheplev, C. J. presiding. The defendant had instituted a prosecution against the plaintiff, for a crime, which in fact had not been committed by any one. Defendant insisted that he had probable cause for the prosecution. Witnesses were examined on both sides. The verdict was for the defendant; and the plaintiff filed exceptions.

<p>Assumpsit, upon two promissory notes and upon two accounts.</p> <p>The plaintiff resided in Boston, and was a dealer in spirit-nous liquors and groceries, and used to furnish such goods to the defendant, who resided in Bangor, and who there sold such liquors, without any license. The plaintiff, when occasionally at Bangor, several times told the defendant that, on receiving orders for goods, he would supply and forward them. Accordingly the defendant several times sent orders, and the goods were forwarded. In August and also in November, 1847, they settled'-the accounts, and the defendant, at each of those settlements, gave his note for a balance. The settlements were made and the notes given in Boston. A part of the consideration of each note was spirituous liquor. These are the notes now in suit.</p> <p>In November, 1847, the - plaintiff delivered some other goods, of the same sort, on account, to the defendant in person at Boston, and in February, 1848, a further account of the same kind had accrued.</p> <p>These are the two accounts now in suit. They each contained some items of credit.</p> <p>The case was submitted to the Court for such disposition as the law should require, with power to draw inferences of fact.</p> <p>1. The sale was injurious to the people and to the interest of the State. Such contracts are not to be enforced. Story’s Confl. of Laws, sect. 244, 252, 348 — 351; Greenwood v. Curtis, 6 Mass. 376; Blanchard v. Russell, 13 Mass. 1, 6; Prentiss v. Sawyer, 13 Mass. 22, 24.</p> <p>2. The sale was against good morals. Ex turpi causa non oritur actio. Story’s Confl. of Laws, sect. 244, 245; Armstrong v. Toler, 21 Wheat. 358, 360. Plaintiff knew the defendant bought the liquor to be sold to citizens of Maine.</p> <p>3. Plaintiff knew the defendant had no license, and thus, purposely furnished him the means of transgressing the laws of this State. Story on Confl. of Laws, sect. 253, p. 379 ; Lightfoot v. Tenant, 1 Bos. & Pul. 351, 356; Langton v. Hughes, 1 Maulé & Selw. 593 : Canaan v. Brice, 3 Barn. &. Adolph. 179, 181; Catlin v. Bell, 4 Campb. 183; Terrill v. Bartlett, 21 Term. 184; Case v. Ricker, 10 Verm. 282.</p> <p>4. ,The action is barred by the statute of 1851, for the suppression of drinking houses and tippling shops. Chap. 211, sect. 16. This statute was clearly intended to act retrospectively, and to affect actions pending, as well as future actions. Sect. 16 and 18. Hastings v. Lane, 15 Maine, 134; Thayer Sp al. v. hSeavey, 11 Maine, 284; Whitman v. Hapgood, 17 Mass. 464; Oriental Bank v. L'reeze, 18 Maine, 109; hlatterl.ee v. Matthewson, 1 Peters, 413; Watson v. Mercer, 8 Peters, 110; Bennett v. Boggs, 1 Bald. 74; Charles River Bridge v. Warren Bridge, 11 Peters, 420.</p> <p>The gentleman speaks of the Act of 1851, as unconstitutional. But it is not so. It disturbs no vested rights of the plaintiff. He never had a right to recover for the liquors in this State. It impairs no obligation of a contract. It only changes the remedy from the Courts of this State to those of Massachusetts, or of the United States.</p> <p>5. No recovery can be had by the plaintiff, because the liquors were sold to the defendant, not in Boston, but in Bangor. They were ordered by the defendant at and from Bangor, without any direction by whom they should be sent, and the plaintiff shipped them upon that order. The sale then was not completed, till they were delivered to the defendant at Bangor. 2 Kent’s Com. sect. 39, p. 500 ; Terrill v. Bartlett, 21 Verm. 184; Case v. Ricker, 10 Verm. 282; Story on Confl. of Laws, sect. 252.</p> <p>For these liquors sold by plaintiff, and delivered to defendant at Bangor he cannot recover, nor can he maintain this action on the accounts in which the liquors are charged, though they contain other articles of merchandize. See Laws of Maine, 1846, chap. 205, sect. 10.</p> <p>Large payments have been made by defendant to plaintiff, and these should be appropriated towards payment for the other articles of merchandize, which the plaintiff had a lawful right to furnish.</p>

<p>On Exceptions from Nisi Prius, Tenney, J. presiding.</p> <p>Assumpsit, founded upon the following memorandum, signed by the defendant. “ There is deposited in my hands this day 150,00, by R. D. Hill to be paid to John Carle, when said Hill shall have satisfied himself that the fourth part of the schooner Bahama, which said Hill has this day purchased of said Carle, is free from incumbrances ”</p> <p>The plaintiff offered to show by the declarations of Hill, that he was- satisfied as to the title. The Judge excluded the evidence.</p> <p>Prior to the suit, (which was brought ninety-four days after the date of the memorandum.) the plaintiff had demanded the money of the defendant. Evidence was introduced by the plaintiff upon which a nonsuit was ordered. To that order, exceptions were filed. The other facts will sufficiently appear in the decision.</p> <p>The nonsuit was wrongfully ordered.</p> <p>1. It was not shown or pretended that there was any incumbrance on the plaintiff’s quarter of the schooner. Hill was bound to make his inquiries within a reasonable time. If he was allowed to delay ad libitum, he might virtually annul the contract. Not to have made his inquiries in a reasonable time, was a waiver of the reservation he had made in the deposit. The law vrould presume he was satisfied. Such reasonable time had elapsed. 14 Pick. 424; 5 Pick. 425.</p> <p>If, then, Hill had signed the contract, an action upon it would be maintainable.</p> <p>2. This suit is equally sustainable. If the title was good, Bearee was bound to pay, after a reasonable time for Hill’s inquiries. Otherwise the plaintiff has lost his vessel, and the defendant gains the money. 5 Pick. 425.</p> <p>Bearee represents Hill, and has no other defence than Hill would have had, if he had signed the contract.</p> <p>3. There was evidence to satisfy the jury that Hill had found the vessel free from incumbrance.</p> <p>4. The ascertainment of title by Hill was a matter which Bearee might waive. This he did, when saying “call, and if I find there is no claim on the vessel, I will pay you.”</p> <p>5. The declarations of Hill should have been received as •evidence that he had become satisfied. They were to be •vjewed as admissions, either of the party in interest or of the party referred to in the contract. Hill is the real defendant, or is identified in interest with the defendant. 1 Greenl. sect. 230, 285; 26 Maine, 117; 8 E. L. C. 240; 8 N. H. 356 ; 2 Stark. Ev. 42.</p>

<p>When a party has contracted with another to do a particular work, either at its cost or at a fixed price, a sub-contractor cannot resort to the principal for his compensation, but must look to his immediate employer.</p> <p>An interrogatory which suggests the answer desired, and is in its form a leading question, propounded to a deponent in his direct examination, and objected to at the time, must, together with its answer, be stricken out.</p>

On Report from Nisi Prius, Tenney, J. presiding. Dower. The demandants allege that Mrs. Manning was formerly the wife of Miles Laboree; that, during her coverture with him, Miles was seized of the premises demanded ; that he afterwards deceased; that she subsequently intermarried with Mr. Manning; and that a demand for an assignment of her dower was duly made upon the tenant, who was the father of said Miles, and his heir at law.

On Report, from Nisi Prius, Tenney, J. Trover, for one undivided half of a dwellinghouse. The facts, as ascertained by the verdict, were, that the plaintiff’s intestate and the defendant jointly built the house on their father’s land, and with his consent. The father after-wards conveyed the land by a deed, (making no mention of any buildings,) to the defendant and another person, and those grantees conveyed the land to one Whittier by a warranty deed.

The defendants in error, were plaintiffs in the former suit, and recovered judgment against Lord in the District Court, in a plea of the case, “ for that the said plaintiffs, at, on, &c. being possessed of [certain lumber,] of the value of $900,00, casually lost the same, which came into, the defendant’s hands by finding. Yet though often requested, said defendant has not paid said sum, or any part thereof, but neglects and refuses so to do.

<p>On Exceptions from Nisi Prius, Tenney, J.</p> <p>Assumpsit to recover for supplies furnished to a pauper. The writ was dated in 1843. Under an appropriate brief statement, the defendants offered in evidence the record of a judgment, recovered by the defendants in 1849, in a suit commenced in 1845, by the plaintiffs, to recover for supporting the same pauper. This evidence was objected to, but was admitted j and it was ruled by the Court to be a bar to this suit. To that admission and to that ruling, the plaintiffs excepted.</p> <p>The objections to the receiving of the record, were, that it was irrelevant, because received in a suit brought after the commencement of this suit, and also that the defendants were precluded from using the record, by an agreement of record, filed in this case, at the October term, 1848. At that term, this action was numbered 34, and the action in which the above named judgment was recovered, was numbered 103. In both suits, questions of law had been raised, and in No. 34, a verdict had been set aside. The agreement related to the order in which the actions should be tried, and contained the following expression, “the intention of the parties being that No. 34 shall stand on as favorable grounds, as if tried at the present term.”</p> <p>I. When the agreement was made, (October, 1848,) the judgment had not been recovered, and of course could not be used by the defendants. If they can now use it in evidence, this action, No. 34, will stand on a less favorable ground, than if tried at said October term, 1848 ; a result, which the agreement expressly forbids.</p> <p>II. The plaintiffs are not estopped by said judgment. B,. S. Chap. 32, sect. 30, merely provides that a judgment recovered, not in a subsequent but in a prior action, may be a bar. This action, No. 34, was of earlier commencement than No. 103, in which said judgment was recovered.</p>

On Report from Nisi Prius, Tenney, J. presiding. Assumpsit. In 1838 and 1839, the plaintiff erected buildings upon land-belonging to his wife. She died' in 1845, and her heir-at-law, in 1847, recovered judgment in a real action against the plaintiff for the land, and entered into possession under the judgment. This suit is brought against the heir to recover for the value of the buildings. The case was submitted to the Court for a legal decision.

Debt, upon a debtor’s relief bond dated March 13, 1849. It is resisted by the surety. On the 12th of September, a court of two justices of the quorum was constituted to hear the disclosure of the debtor. The plaintiff had been duly cited, and appeared by his attorney. After a partial disclosure by the debtor, the plaintiff’s attorney requested an adjournment to the 13th of September, which ivas granted.

<p>In order to a recovery of the threefold damage, allowed by the statute, chap. 162, sec. 13, for the wilful destruction of property, it is not a prerequisite, that the defendant should have been convicted of the offence, in a criminal prosecution.</p> <p>In a criminal prosecution under R. S. chap. 162, sec. 13, for wilfully destroying property, the party injured may therefore be a witness for the state.</p> <p>In a criminal prosecution, under R. S. chap. 162, sec. 13. for wilfully destroying the property of a person without his consent, it is immaterial whether the property came rightfully or wrongfully into possession of the defendant. A wrongful taking is not an essential ingredient in that class of offences.</p>

<p>On Report from Nisi Prius, Tenney, J.</p> <p>Assumpsit, by the indorsee against the maker of a promissory note of $250, dated in 1846.</p> <p>One Sanborn, after having mortgaged real estate to Moor, conveyed the same by warranty deed to Herring. Herring conveyed it to H. Bradbury, taking back a mortgage for the purchase money. H. Bradbury then conveyed by warranty to J. Bradbury.</p> <p>In order to foreclose the first named mortgage, Moor entered upon the land in 1838, by the written consent of J. Bradbury, and in 1843, assigned his mortgage, with quitclaim of the land, to the plaintiff, who in 1846, conveyed the land by warranty to the defendant, and took in part payment therefor the note now in suit. This note was not made payable to the plaintiff, but to White' & Co., who wrote their name upon the back of it, and held it in their- hands for the plaintiff, upon an agreement, that it should not he delivered to him until Herring’s claim upon the land should be settled or adjusted, and that, if the defendant should be obliged to pay any thing to dislodge Herring’s claim, the amount so paid should be allowed upon the note. In order to dislodge Herring’s claim the defendant was compelled to pay $250, in 1850. White & Co. refused to surrender the note to the plaintiff. It was brought into Court by them under a subpoena duces tecum.</p> <p>The case was submitted to the Court for a legal decision.</p>

On Report from Nisi Prius, Tenney, J. Debt on a judgment, alleged to have been recovered before a justice of the peace. Plea, nul tiel record. The plaintiff introduced a book, containing what he stated to be the justice’s record. The book was objected to, and was not supported by any other evidence than itself.

Exceptions from the District Court, Hathaway, J. Three commissioners were appointed by the District Court, under R. S. chap. 122, to set off the public lands, reserved in a tract which had been granted by the State. The statute requires that, before acting under their warrant, they should take an oath of faithfulness, and that they should give thirty days previous notice of the time and place of their meeting to discharge their trust. Such a notice they gave.

<p>The record of a suit, in which a plaintiff had recovered judgment, cannot be used against him as an estoppel in a subsequent suit between him and a person who was not a party or privy to the first suit.</p> <p>The allegations of a former writ, in which the present defendant had recovered judgment as plaintiff, may be used as evidence of his admissions, although the present plaintiff was neither party nor privy to such suit.</p> <p>Such allegations may be shown, by introducing the record of the former suit.</p> <p>The general rule that titles and interests in real estate are to appear of record, has been, to some extent, controlled by the statute, which gives liens upon land, for labor and materials furnished in the erection or repair of buildings thereon.</p> <p>Contracts for such labor or materials, and the furnishing of the same, are proveable by parol.</p>

<p>A magistrate, in taking a deposition, acts in a ministerial and not in a judicial capacity.</p> <p>If in tire caption, lie certify falsely, ho is accountable to the party injured.</p> <p>In the caption of a deposition, taken within this State, the magistrate’s certificate, as to the notice, manner or cause of the taking, is conclusive evidence of the fact certified, and no evidence can be received to control it.</p> <p>Thus, the magistrate’s certificate, that ‘ the adverse party was notified to attend,’ was Held, to exclude parol testimony, offered to show, that the time between the notice and the caption was less than that allowed by the statute.</p> <p>Whether a deposition, taken within the State, is or is not admissible, is merely a question of law. No discretionary power to admit or reject it is lodged with the Court.</p> <p>In a replevin suit, the interest of a surety on the replevin bond is removed by a deposit for his use, made with the clerk of the Court, by the plaintiff, of an amount equal to the penalty of the bond. A deposit so made is subject to the control of the Court, until accepted by the party for whose use it was made.</p>

On Exceptions from the District Court, Hathaway, J. Debt upon a poor debtor’s six-months’ relief bond. The debtor resided at Brewer, and had been arrested on the execution by a constable of that town.

On Report from Nisi Prius, Tenney, J. Debt on a replevin bond. These defendants had issued a replevin writ against these plaintiffs, directing the officer to replevy 1478 saw logs, valued at $6660. The officer returned that he had replevied 1386 logs. At the trial in that suit the ownership of the logs was in controversy. Upon that point some questions of law arose.

On facts agreed in the District Court. Debt for the breach of a bond, given to procure the release of Pomroy from arrest on mesne process. Pomroy made no disclosure upon the bond. Judgment went against him in that suit, and upon the execution he gave a poor debtor’s six months’ relief bond, from which he was discharged, since the commencement of this suit, by taking the poor debtor’s oath. I. The bond is subject to chancery. 22 Maine, 483. II.

On facts agreed in the District Court. Debt upon a poor debtor’s six months’ relief bond. The principal debtor was defaulted. The surety defended. The bond was dated July 14, 1848.

<p>A devise of tlie income of land to the use of the devisee during his life, confers upon him a life-estate in the land.</p> <p>A devise of the care and management of land and of the disposition of its income, during the life of the devisee, for the benefit of another, confers upon the devisee a life-estate, in trust.</p> <p>If, under the will, the devisee take an estate in fee, subject to such life trust, his creditor, by a levy of his estate in remainder, can take no enjoyment of the income, until the death of the devisee.</p> <p>An entry upon the land by the creditor to make such a levy, without his retaining or otherwise interfering with the possession, is not a trespass against the debtor.</p>

<p>On facts agreed.</p> <p>Dower, unde nihil habet, brought by the widow of Zadoc French, who, at one period during her coverture with him, owned the land upon which the Penobscot Exchange House stands, and also many other tracts of valuable land in the city of Bangor. This suit is brought to recover dower in the Exchange House lot. On January 19, 1829, the husband, in order to raise money for his own use, mortgaged that lot to Eben. French, alleging the consideration to be $12,000.</p> <p>The demandant did not join with her husband in executing the deed. But, on the 4th of February, 1829, she executed upon the back of that deed, an instrument under her hand and seal, relinquishing to the mortgagee her right of dower, reciting therein that the relinquishment was done by the consent of her husband as testified by his being a party thereunto. The husband however did not join with her in that instrument. The consideration of her said relinquishment was stated to be “ the within named sum of $12,000.”</p> <p>The mortgagee, on the next day, (5th February, 1829,) assigned the mortgage to this defendant, Peters.</p> <p>In July, 1831, after her husband’s death, she applied to the Probate Court for an assignment of her dower, and thereupon several entire parcels of the land, including the Exchange House and its lot, were assigned to her in dower, instead of one-third in each of the parcels, of which her husband was seized at bis death. To this assignment she and the heirs assented, and she entered into the possession of the parcels so assigned.</p> <p>In 1842, the mortgage was fully foreclosed, and the demandant was thereupon evicted of the most valuable of the parcels assigned to her in dower.</p> <p>Zadoc French’s administrator sold lands belonging to the estate, having been duly licensed, on giving to the Judge of Probate a bond, (upon which this demandant was a surety,) to account for the avails. He, however, misappropriated a large amount of the proceeds of the sale.</p> <p>The grounds taken in defence were : —</p> <p>1st. That the demandant’s right of dower was barred by the relinquishment which she had executed and indorsed upon the mortgage deed ; —</p> <p>2d. That the • assignment of dower made by the Probate Court is a bar to this suit; —</p> <p>3d. That the mortgage debt due to the tenant, Peters, ought to have been paid from the avails of the land sold by the administrator, upon wh'ose Bond the demandant, as a surety, will be liable to repay to the tenant the balance of that debt. And that debt will be made the larger by her recovery in this suit, and to the very amount of such recovery, because it lessens to that extent the value of the property upon which ■the mortgage was foreclosed. Wherefore, to avoid circuity, the demandant must be estopped to recover in this suit.</p> <p>The instrument, executed by the demandant upon the back of the mortgage deed, is no bar to her right of dower. It was the deed of herself alone, unapproved by her husband. It does not recite the mortgage as a consideration. That it was indorsed upon the mortgage has no effect to make it a part of the mortgage, any more than an assignment upon a mortgage becomes a part of the mortgage. It bears a subsequent date, and was made at a subsequent time. It shows upon its face that she did not intend to be bound by it, unless her husband should join in its execution.</p> <p>But, if she did design and attempt to bar her right of dower by that deed, it was not effectually done. At the common law the sole deed of a covert feme is merely void. 7 Mass. 14; 14 Maine, 435.</p> <p>It becomes important to ascertain what modifications of the common law have been introduced by the legislature. The colonial ordinance of 1641, by implication, provides that a wife might bar her dower by a writing acknowledged before a magistrate. Anc. Charters, page 99. That ordinance was abrogated upon the revocation of the first charter in 1685. The principle, however, was revived by two provincial statutes passed in 1692. Anc. Charters, chap. 213, 229. These statutes were virtually repealed in 1697 by the proviso to the “Act for registering deeds.” Anc. Charters, page 303 ; Rowe v. Hamilton, 3 Maine, 63; Fowler v. Shearer, 7 Mass. 14. These cases conclusively show that after the passing of the Act in 1697 “ for registering deeds,” no statute was in force to authorize a feme covert, by her deed alone, to bar her right of dower.</p> <p>In Fowler v. Shearer, there is a remark of Parsons, C. J., that a wife’s right of dower was sometimes barred by her separate deed, in which the sale by the husband was recited as a consideration.</p> <p>The remark was uncalled for by any thing in that case. It was mere dictum. But the “ separate deed” there spoken of did not mean her sole deed, but only a subsequent deed. And there is nothing to show that, in such subsequent deed, it was unnecessary for the husband to join. This conclusion is equally grammatical, and is in accordance with the spirit of the case and with the context.</p> <p>The argument of the opinion shows that the deed of a married woman was void at the common law, but that some cases existed by usage where it might operate to bar her dower ; viz.: — Where she joins her husband in conveying her own estate ; — where she joins in his deed of his own estate, for the purpose of relinquishing her dower ; — and where by a deed, distinct and separate from his conveyance, she relinquishes dower. Can it be questioned, that by this last expression, used in such a connection, there must also be meant that the husband should join in the deed ? Shaw v. Russ, 14 Maine, 435. The dictum was based upon a supposed usage. But there is not, and there never was, such a usage.</p> <p>C. J. Weston, in Shaw v. Russ, says, “as to a usage to this effect, we are not aware that an instance has been presented' to the consideration of the Court there, (in Massachusetts,) and this is the first attempt of the kind, which has come to our knowledge here.”</p> <p>The deed of a feme covert, in which the husband does not join, is void. Andrews v. Hooper, 13 Mass. 476. The dictum of Parsons, C. J. if intended to apply to the deed of the wife alone, is denied by Story, J. in Rowell v. M. fy B. Manf. Co. 3 Mason, 347. At any rate, such a deed, in order to be operative, must recite the husband’s conveyance as a consideration. Such is not the character of the demandant’s deed. It recites a different consideration. But we consider the case of Shaw v. Buss, decisive.</p> <p>With regard, then, to the instrument of Feb’y 4, 1829, there is nothing left for the defence, except what argument may be derived from the language, “ or where she may have relinquished her right of dower by deed under her hand and seal,” found in statute of 1821, chap. 40, sect. 6. But the obvious answer to that argument is, that by the deed, there referred to, is meant a deed according to lawin other words, a deed in which the husband joins. I am not aware of any case, in which her sole deed has been upheld under that statute.</p> <p>The provision is nothing more than a transcript of Massachusetts statute of 1783, chap. 37, and that of 4 & 5, W. and Mary, chap. 16, sect. 5, which Story, J. construes as not intended to let in any usage or practice, not consonant to the principles of common law, but merely to refer to the “ex-tinguishment of dower in any legal manner whatsoever.”</p> <p>The commissioners, Avho compiled the R. S., have shown their understanding of the provision by R. S. chap. 95, sect. 9, Avherein it is expressly said that a subsequent deed “ executed jointly with the husband,” is necessary.</p> <p>This certainly may fairly be regarded as an exposition on the part of the legislature, of their views of the existing law as to releasing dower.</p> <p>But whatever may be the construction on this part of the clause, it is a perfect ansAver to say that the instrument of Feb. 4, 1829, if intended for a deed, was but a joint deed, uncompleted and therefore inoperative.</p> <p>No defence can be drawn from the assignment of dower, made by the probate court. The defendant, by the foreclosure of his mortgage, divested the demandant of all title and claim to the Bangor Exchange House. The doAver assigned her in that property was then taken away by that foreclosure. She has had no dower or equivalent for dower in these premises. The assignment of dower which she accepted was inter alios. The defendant was not affected by it. As to him, it was a nullity. Sheafe v. O'Neil, 9 Mass. 9; Wilkins v. French, 20 Maine, 111. Neither was it a release or in the nature of a release. And if it were, it could not be pleaded where there is no privity. A release of dower to a stranger, under whom the tenant does not claim, is not pleadable in bar of dower. Pixley v. Bennett, 11 Mass. 298.</p> <p>The demandant is barred by her release of February 4, 1829. The effect of that instrument is to be found in the Acts of 1821. The chap. 36, §. 2, provides that nothing in the Act should bar a widow of her dower, who did not join with her husband in such sale or mortgage, or otherwise lawfully bar or exclude herself. Chap. 40, sect. 6, provides that the widow shall be entitled to dower in all lands of which her husband was seized during coverture, except where she may by her own consent have been provided for by way of jointure prior to the marriage or where she may have relinquished her right to dower by “deed under her hand and seal.”</p> <p>The legal doctrine upon this point is found in the opinion of Parsons, C. J., in Fowler v. Shearer, 7 Mass. 14 and 20. That opinion has ever since continued to be the law in Massachusetts. 9 Mass. 143, 149, 161, and 173 ; 8 Pick. 536. The same has been the law of New Hampshire. Shepherd v. Howard, 2 N. H. 176 and 507, and cases there cited. In this State, (3 Greenl. 63,) the doctrine of the Massachusetts cases is discussed at length by Mellen, C. J. and approved and adopted. Though the case of Shaw v. Russ, 14 Maine 432, undertakes to modify, it by no means overrules it. The marginal note does not correctly indicate the point decided. The decision went upon the ground that the subsequent and separate deed of the wife “ was not made in consideration of the husband’s conveyance,” but for a consideration “ altogether independent and distinct, so that it is not sustained by the case of Foioler v. Shearer.”</p> <p>The case of Russ v. Shaw proves our position, for, in the release of the demandant, indorsed upon her husband’s deed, she declares that it was made “ in consideration of «the within named §12000 paid” to her husband, &c. this being done “ in fulfillment of his and my intention to convey a clear title by virtue of the within written deed.”</p> <p>Thus the release was amply expressed to be in consideration of her huband’s conveyance; so that if Russ v. Sha.w in some respects limits Fowler v. Shearer, it however leaves our defence fully within the folds of both cases.</p> <p>Judge Parsons asserts that it had been usual to make such instruments. He knew then much better than we can ascertain now, what every day practice, what the usage was, and what the law was understood to permit; and he embodied it in 7 Mass. It was acquiesced in as the law of New England. Thousands upon thousands of instruments have undoubtedly been drafted in accordance with the rules laid down in that case. It is too late to disturb it. And although C. J. Weston undertook to cavil at it a little, he left it unmarred and unimpaired.</p> <p>Judge Story too, who loved to magnify the greatness of great men, and then show where he had found they Avere mistaken, in a case hereafter named, undertook also to limit Parsons’ opinion, but at same time said of him “ no man was better acquainted with our local law.”</p> <p>Neither Ayas the law of Massachusetts overruled in 3 Mason, 347, cited by demandant’s counsel. That case undertook to say that the case of 7 Mass, must be understood as making a separate deed of the wife valid to release her doAver Avhen her husband does not join Avith her, only in cases Avhere her conveyance was in consideration of his conveyance, and was for the same consideration. The case went off upon that point, in the same manner as did our own in 14 Maine. So that the opinion of Story Avith that limitation or rather construction of Parsons’ opinion, actually confirms our defence.</p> <p>There is another decision in the case from 3 Mason, which makes onr defence at bar a good one. Judge Story, discussing in that case what Parsons intended by “ a separate deed,” says, “ If it means that it may be done by a separate deed of the wife executed after the deed of her husband, but on the same day, or as part of the same transaction, then there is no difficulty in reconciling it with the language of the statute, for the wife may truly be said to join in the sale, when she is a party to it at the time it was made, whether she join in her husband’s deed, or execute a separate deed.’’'’</p> <p>We say that Mrs. French’s release on the back of her husband’s deed of mortgage, was a part of the same transaction.</p> <p>The facts agreed state, that Zadoc French made the mortgage to Eben, his son, to raise money upon for himself, Zadoc. It was not therefore a mortgage, in the ordinary course of business, but was made in trust to Eben for Zadoc’s benefit. Therefore in legal effect, at all events in equity, Eben was nothing more than a conduit of the title for convenience sake. He held the legal title for his father, as his father’s, until, as his father’s agent, he passed it to Peters for money which was procured for and went to Zadoc. 2 Fairf. 1; 2 Pick. 508 ; Warren v. Ireland, 29 Maine, 62.</p> <p>Eben took the deed January 19, 1829, and it was recorded on same day, undoubtedly by Zadoc, and on 4th February, A. D. 1829, received the release of his mother, and on the fifth, next day following, assigned the mortgage and sold the notes to Peters for his father. Her release is for same consideration expressed in the mortgage deed. She recites the deed, fully admits and acknowledges it, makes hers a part of his deed, couples them, concludes her deed by the words “ as witness our bands and seals this day, &c.” Eben all the time holding it in his own hands as an uncompleted conveyance, till his mother had signed, before Peters would buy.</p> <p>There cannot be any question that delivery of that assignment to Peters, was in legal effect the first delivery that was ever made of the mortgage deed. It was handed Eben, to deliver Peters on 5th February. Till that day it was precisely the same as if it had remained in Zadods own hands.</p> <p>It was never delivered Eben to be the property of Eben. Eben paid no consideration for it — did not claim it. The making of the mortgage, and the release of dower'and the assignment of the mortgage, were all for one and the same consideration. They were all made for one purpose, were all delivered at one time to Peters, who took from Zadoc French, or from Eben for Zadoc, all the papers, and paid the money.</p> <p>How else can this be than one transaction ? How can it be said there was any delivery till that to Peters ?</p> <p>The practice of executing a deed by the wife, in order to bar her claim to dower, at a time many days subsequent to that on which her husband had executed it, is common and unobjectionable. Frost v. Deering, 21 Maine, 156. Our case is within that decision.</p> <p>In the case, 3 Mason, Judge Story seems to think, if the husband’s assent is necessary to the wife’s deed, that it may be by parol. His consent must be presumed in this case, because it was done for his benefit. More than that, the full consideration was paid him, or Eben for him, after her release.</p> <p>“ Where on one side of a paper was a deed apparently absolute, dated and duly executed, and on the other side a writing, in the usual form of a condition to a mortgage, without date, signature or seal, this condition was a part of the deed.” ■Stocking v. Fairchild, 5 Pick. 181.</p> <p>How much stronger is the argument in this case, that her release was a part of the deed ?</p> <p>The question of plaintiff’s dower in these premises has been before this Court several times before. Wilkins v. French, 20 Maine, 111; French v. Crosby, 23 Maine, 276 ; French v. Pratt, 27 Maine, 381.</p> <p>In each of those cases the mortgage deed and the assignment now in question were before the Court, and parts of the cases ; and in each case it was assumed by the counsel on both sides, and stated in the/opinions of the Court, that the plaintiff, had by her separate release after her husband’s deed, released her dower. It was in neither case regarded as a question.</p> <p>The case 27 Maine, 381, decides this case. The only difference between the cases is, that the premises now in question are a portion of the very dower assigned to the demandant. But on principle this difference is nothing; it is only in feature.</p> <p>When the widow was endowed against common right and accepted the assignment made in that way, it barred her from obtaining it in any other mode, she abides by whatever rights she can obtain in that way, she cannot be endowed anew. 27 Maine, 381.</p> <p>The accepting of that assignment was a release of all other right or mode of dower. If she had a common law claim of dower in defendant’s property, which she could demand and obtain by an action, she released it by the acceptance of that assignment.</p> <p>She does not claim any thing that was given her by that assignment now, but something else. By that assignment she was put into the possession, with claim of freehold, of the whole of the premises in question, she now abandons that claim, or has been defeated of it, and claims one third of the same in right of dower, which claim, in that mode, she is estopped to make.</p> <p>It was decided in French v. Pratt, that when she received the Exchange House property, she received it subject to incumbrances, all incumbrances made by the husband. The cases cited by Court and counsel are full authority to that effect. In this connection I will also cite, as perhaps analogous upon principle, the cases in 13 Wend. 553 : 5 Mete. 277.</p> <p>Her right to dower in the various premises of her husband of which he died seized, (and this comes under that head,) was merely an inchoate right, and lies only in action till assignment.</p> <p>After assignment she is considered as holding immediately from the death of her husband, so that the heir is not considered as having ever been seized of that part of his ancestor’s estate, whereof the widow is endowed. Cruise on Real Property, Title 6, Dower, chap. Ill, sect. 24.</p> <p>Her endowment was against common right. This was more beneficial to her than to have taken a third in every lot of which her husband died seized. She accepted that endowment, and it was a freehold, and she took it subject to all incumbrances. 27 Maine, 381.</p> <p>If she continues her husband’s seizin, she continues it subject to the incumbrances, and his seizin in this case having been subject to a mortgage, it must defeat the widow of her claim till paid, and if, as in this case, it is absolute, her rights are gone.</p> <p>Another ground of defence is, that the plaintiff signed the bond which Eben French gave for selling land and paying the debts of the estate. Upon that bond she would be liable to Peters for the misconduct of the administrator. As his mortgage has become foreclosed, the presumption is, that it was of more amount than the Exchange House in value. He could therefore maintain an action against her. She is then estopped in this suit, so as to avoid circuity of action.</p> <p>Permit me now to refer the Court to a beautiful arrangement of the facts of the case, and a clear exposition of the law upon them in the argument of Mr. Cutting, in the case of French v. Pratt. It is a handsome structure, upon a strong basis, and will endure as long as truth can last. It saves me much labor, and does him much honor. I shall admire to see the degree of his composure, if in the close of this case he shall undertake to tear that structure in pieces.</p> <p>My associate has proved, I think, that the case of Fowler v. Shearer, if it ever was law, has ceased to be so.</p> <p>The pretence that the statutes of 1821 do not require a deed in which the husband shall join, he has also fully obviated.</p> <p>The defendant contends that the release upon the back of the deed is to be viewed as a part of the same transaction with the giving of the deed. But it cannot be so. The acts did not occur upon the same day. A bond of defeasance, in order to constitute a mortgage must be of the same day with the deed, and intended at the time to be a part of the same transaction.</p> <p>The case of French, v. Pratt, upon which the counsel so strongly relies, was essentially different from this. The demandant had been endowed against common right; that is, she had taken an assignment of certain entire parcels of land for her dower, instead of one third in each parcel. In that case she sued for dower in one of the parcels which had not been assigned to her. In this case her claim is for dower in a parcel which had been assigned to her, but of which she was evicted by the foreclosure.</p> <p>The demandant’s suretyship upon the administrator’s bond can operate as no estoppel to this action; most certainly it could avail nothing till after judgment. If sued upon it, she might defend upon several grounds. Among other things, proof that she liad been deprived of this dower, by failing to recover in this suit, would be a defence.</p>

<p>On Exceptions from Nisi Prius, Shepley, C. J.</p> <p>Trustee process.</p> <p>The question was, as to the liability of the trustees.</p> <p>It appeared from the writ, disclosure and the testimony, that the defendants and the persons summoned as trustees all resided in the Province of New Brunswick, and that no attachment of any tangible property of the defendants had been made, and that neither of their bodies had been arrested.</p> <p>For that reason the Judge ordered that the trustees be discharged, and to that order the plaintiff excepted.</p> <p>The Rev. Stat. chap. 119, sect. 12, provides, “that any ■person on whom a trustee process shall be served, shall bo liable to be adjudged trustee, though he was not then and never had been an inhabitant of the State, and that the writ may be returnable in the county, in which either the plaintiff or the principal defendant may reside.”</p> <p>Express provision is made for cases where defendant resides out of the State. It does not require, that both plaintiff and defendant should reside in the jurisdiction. Section ?', cliap. 119, refers to sect. 28, chap. 114, and sect. 2 and 3, chap. 115. See also sect. 80 and 82, chap. 119, R. S ; Stat. of 1845, chap. 136.</p> <p>The intention of the legislature is plain, that a trustee should be chargeable if he comes here, though his domicil is elsewhere.</p> <p>The statute of 1845, directs the mode of making demand upon trustees living out of the State. When so made, if the trustee refuse, the plaintiff has remedy when the trustee again comes within the State.</p> <p>The law and the Acts that make a trustee a party, are distinct from the Acts that bring in the principal defendant. 11. S. chap. 119, sect. 20.</p> <p>Courts of general jurisdiction do not inquire as to the domicil of the parties in transitory actions. Our Courts are open to the world. Barrel v. Benjamin, 15 Mass. 355; Story’s Conflict of Laws, 453 and 457, and 545 and 546.</p> <p>A judgment may be good here which will not be respected in foreign courts. The legislature have the power to authorize the rendering a judgment here, though the courts of defendant’s domicil may not enforce it. Story’s Conflict of Laws, 547; Folliot v. Ogden, 3 D. & E. 125.</p> <p>Personal contracts follow the person of the debtor. 16 Mass. 302.</p>

<p>The hiring of logs to be sawed, does not constitute the owner of them, if non-resident, to he such an “ occupant” of the saw-mill, as to subject the logs to taxation in the town wherein the mill is situated.</p> <p>Neither does the payment by him of wharfage for manufactured lumber constitute him to he such an “ occupant” of the wharf, as to subject the lumbor to taxation in the town whereisj the wharf is situated.</p>

On Report from Nisi Prius, Shepley, G. J. presiding. Case against the sheriff, for an alleged default of his deputy, Charles W. Doughty, in neglecting to keep and to deliver property attached hy him.

<p>On facts agreed.</p> <p>Assumpsit by the indorsee against the makers of a promissory note.</p>

<p>Of tlie place at which a seal must be affixed upon a justice’s warrant in a criminal prosecution.</p>

<p>A partial payment, made by a party, who was indebted severally and also jointly with another, to the same creditor, for items of book charges, is to be applied upon the several debt, unless a different appropriation is proved to have been intended at the time of the payment.</p> <p>In such a case, though the creditor have credited the money to the joint account, he is not thereby precluded to transfer it to the several debt, by proving that, as to a part of the items, he was, by the unauthorized pretensions of the party, paying the money, deceptively led to charge the joint instead of the several account.</p>

<p>Generally, it is only by tbe act of tlie owner tbat a contract-lien upon property can be created.</p> <p>That rule was changed by the Act of 1848, which created a lien in behalf of laborers upon logs, masts, spars and lumber.</p> <p>An owner of logs employed a contractor to drive them down the river at a stipulated price per thousand feet. The contractor hired laborers, who assisted in the driving. Held, that the laborers acquired a lien upon the logs.</p> <p>Such owner, being summoned as trustee of the contractor, was allowed, out of the stipulated price for the driving, to discharge the laborers’ liens.</p> <p>When, in the same stream, there are logs of different owners, and each owner has employed sufficient laborer^to drive his own logs, the lien of such laborers is solely upon the logs thfey were employed to drive, although it happen that the logs of all the ownerships, being intermixed, are driven collectively by all the laborers employed by all the owners.</p>

<p>A.n inspector of fish, is bound to such, thorough, examination of the article inspected, as to become satisfied that it is of the quality and condition regarded by lav, and designated by his brand.</p> <p>He is not responsible, as upon a voarrantxj, for ihe correctness of the brand which he places upon an inspected article.</p> <p>But ho is responsible for the possession and for the exercise of skill and care, sufficient for performing the duty, affixed hy the statute to his office.</p> <p>If an inspector affix his brand to an article, without knowing its condition, he is responsible for all injury occasioned thereby to a person, purchasing upon the credit of the brand..</p> <p>In a suit against an inspector for an unskillful and unfaithful performance of his inspection-duties, it is not competent for him to prove the customary mode pursued by other inspectors, or that it is usual for inspectors to take bond of indemnity against a deficiency in the quality, or in the condition of the article branded.</p>

On Report from Nisi Prius, Shepley, C. J. presiding. Trespass for breaking and entering the plaintiff’ ’s close, and taking away five tons of the plaintiff’s hay.

<p>The second section of the Aet of 1846, chap. 205, -which prohibits the maintenance of suits upon contracts, made for liquor illegally sold, cannot be construed to prohibit actions of trover for the unlawful conversion of such liquor.</p> <p>The lien of a common carrier, for the freight of goods, transported by sea from a port of one nation to that of another does not, of itself alone, authorize him to sell the goods for payment of the freight. The usual remedy is by a libel before some tribunal, by whose decree the shipper’s rights may be protected.</p> <p>Of declarations and acts in pais, by which the owner of property may be es-topped to claim it.</p>

<p>On Exceptions from the District Court, Hathaway, J.</p> <p>Assumpsit.</p>

On Report from Nisi Prius, Shepley, C. J. presiding. Debt on bond. The grant of an unincorporated township of land, to the principal defendant, contained the usual reservations for public uses. Upon a process, instituted by the County Commissioners, a committee had set off and located certain lots for those uses, and their report was in readiness to be returned to the next District Court.

On Report from Nisi Prius, Shepley, C. J. presiding. Assumpsit. The plaintiff resided in Machias, and was in possession of real estate and of a large quantity of lumber, some oxen and a horse, and several other descriptions of personal property, and he was taxed there for the same, though the whole, both personal and real, was owned by a person resident in Massachusetts. The plaintiff paid the tax under protest, and now brings this action to recover back the money.

<p>On Report from Nisi Prius, Siiepley, C. J., presiding.</p> <p>Writ op Entry upon an alleged mortgage, brought by the assignee of the mortgagee against the grantees of the mortgager. The demandant introduced a paper, purporting to be the mortgage declared upon, and dated in 1824, conditioned for the payment, in 1826, of a note of the same date with the mortgage, given by the mortgager to the mortgagee. The demandant also introduced a note, indorsed to himself, purporting to be signed by the mortgager, and corresponding with that described in the mortgage, except that its date appeared to be 1821, instead of 1824. Upon the back of the mortgage was an assignment to the demandant, dated March 10, 1848. It was proved, however, that, though the demandant had purchased and received delivery of the note and mortgage in 1848, the written assignment of the mortgage was not in fact made until March, 1849.</p> <p>The tenants introduced a deed from the demandant to them, dated January 10, 1849, releasing and quitclaiming all his title in the demanded premises, and declaring that his title was “ the same, which he acquired by virtue of a deed of January 15, 1848, from Lorenzo I). Harmon, deputy sheriff, and no other.”</p> <p>The tenants denied the execution of the mortgage.. Together with other evidence upon that point, the demandant called two witnesses to testify as to the genuineness of the signature upon the mortgage, by comparing it with other signatures of the mortgager, proved to be genuine. They testified that they had experience and skill in judging of hand-writings, but had never been in positions where it became their duty to distinguish between genuine and counterfeit signatures, nor did they know the meaning of the word “ expert.” Their testimony was objected to by the tenants, but was admitted. They testified to their belief, derived from the comparison, that the disputed handwriting was a genuine signature.</p> <p>There also was evidence tending to show that the note, produced by the demandant, was the note intended to be secured by the mortgage, though variant, as to the year of its date, from the description in the mortgage.</p> <p>The Judge instructed the jury, that it was competent for the demandant to show by parol proof, that the note offered in evidence was the one secured by the mortgage, although not entirely agreeing with the one described in the mortgage;— that, more than twenty years having elapsed from the payday of the note before this suit was commenced, the presumption of law is, that it had been paid ; — that this presumption might be rebutted by parole testimony ; — that the burden of such proof was upon the demandant; — that the deed, if obtained by fraud, would be ineffectual; and the burden of proving the fraud was upon the tenants; — that the deed of the demandant to the tenants, of Jan’y 10, 1848, did not transfer any interest to which he was entitled, as assignee of the mortgage, because though made after he had become the equitable, it was made before he had become the legal assignee.</p> <p>Several instructions to the jury were requested : —</p> <p>1. That, if a note, corresponding with the description in the mortgage, in its tenor, date and amount, is not produced and shown to be uncanceled, and if the demandant has not proved it to be unpaid, the verdict must be for the tenants; and that the burden of proof is on the demandant to rebut the presumption of payment, arising from lapse of time. This instruction was not given, otherwise than in the general charge.</p> <p>4. That, if Smith and the tenants, who claim under him, had been in the adverse possession of the premises for a period of twenty years from the time when the mortgage debt became payable, and if the mortgage deed was procured by fraud, and if the demandant, at or before the time when the assignment was executed, had actual or constructive notice of the fraud, their verdict should be for the defendants.</p> <p>This instruction was not given.</p> <p>5. That if Smith, the mortgager, remained in possession of the mortgaged premises for a period of twenty years after the mortgage debt became payable, claiming them as his own, that is to be held as an adverse possession against the mortgagee, and those claiming under him.</p> <p>This instruction was refused, and the jury were instructed, on that point, that the possession by the mortgager is in law to be considered the possession of the mortgagee, and not adverse to his rights.</p> <p>6 and 7. That if the testimony of Nash, who testified for the demandant, is directly contradicted by that of Smith, who testified for the defendant, and if the two witnesses are entitled to equal credit, the facts testified to by Nash are to he considered as unproved.</p> <p>8. That the demandant claiming as assignee of the mortgagee, under an assignment purporting to have been executed on the 10th of March, 1848, is estopped by his deed to the tenants, of January 10, 1849, from claiming any title in the premises, which accrued prior to his said conveyance ; and is also estopped by the covenants in said deed from claiming under a title subsequently obtained.</p> <p>9. That if the demandant purchased and obtained possession of the note and mortgage, on or about the tenth day of March, 1848, and if, in pursuance of that trade, and as a part of the transaction, the mortgagee, afterwards, in March, 1849, executed a written assignment on the hack of said mortgage, said transfer would take effect from the time of the sale and delivery, and that Sweetser, having on the tenth of January, 1849, executed a deed to the defendants, in which, among other things, he declared that his right, title and interest in the premises, was the same he acquired by virtue of a deed from Lorenzo D. Harmon, deputy sheriff', dated January 15, 1848, and no other,” is estopped from setting up a title under the purchase of said mortgage from the mortgagee.</p> <p>The 6th, 7th, 8th and 9th requests were refused, further than already given ; and the jury were instructed that the demandant would not he estopped, as contended for in some of said requests.</p> <p>If the Court shall be of opinion that any of said rulings, opinions or instructions were erroneous, or that any of said requested instructions were improperly withheld, then the ver-' diet, which was for the demandant, is to be set aside.</p>

On Report from Nisi Prius, Shepley, C. J. presiding. Assumpsit to recover for expenses incurred in clothing and in committing and maintaining at the Insane Hospital, an insane pauper, resident in Cooper, but legally settled in Alexander. The notice given to the town of Alexander was written and signed by the town agent at the request of the overseers of the poor of Cooper.

<p>On Facts agreed.</p> <p>Assumpsit, by the payee against the makers of a promissory note.</p>

<p>On Report from Nisi Prius, Shepley, C. J. presiding.</p> <p>Trespass for cutting and taking away trees from the plaintiff’s land, in townships numbered six and seven.</p> <p>The County Commissioners had located and established a highway through the townships. Afterwards, in 1840, for the purpose of opening and making the highway, they assessed upon a described part of No. 6, estimated to contain 13.000 acres, exclusive of water and of land reserved by the State, the sum of $1820, being fourteen cents per acre ; and upon No. 7, estimated to contain 29,000 acres, exclusive of water and of land reserved by the State, the sum of $4350, being fifteen cents per acre, to be paid by the proprietors, and ordered the county treasurer “ to collect said assessments according to law.”</p> <p>The treasurer, after advertising as the law prescribed, sold the lands at public auction to the plaintiff. His advertisements stated that the sale was to be at eleven o’clock. His deed to the purchaser recited that the land was advertised for sale at ten o’clock, and that he sold them at that time after waiting two hoars. Neither of the tracts was sold for enough to pay the assessment upon it.</p> <p>The defendants afterwards cut and carried away the trees, for which this suit is brought.</p> <p>. A trial was had in 1848, but the verdict, then rendered, was set aside. 29 Maine, 196.</p> <p>On again coming up for trial, several objections were taken to the plaintiff’s title to the land. Some of them were founded upon the alleged illegality of the County Commissioners’ assessment. The other objections are stated in the opinion of the Court. After the introduction of the testimony, the case was withdrawn from the jury, and submitted to the Court.</p>

<p>On Report from Nisi Prius, Howard, J. presiding.</p> <p>Assumpsit.</p> <p>The plaintiff and the defendant had jointly purchased a bond for a deed of land.</p> <p>The bond was made to the defendant, but the plaintiff was entitled to two quarters of its effects.</p> <p>There was evidence tending to show that the plaintiff applied to the defendant for another quarter ; that the defendant replied, that he had agreed to let Mr. Dodge have one quarter, but that he would ascertain whether Dodge would let the plaintiff have it, that afterwards the defendant informed the plaintiff, that Dodge would consent to the plaintiff’s taking the quarter for $1000, and no less; that the plaintiff accepted the offer, and paid that sum to the defendant, who thereupon assigned that quarter to the plaintiff; but that, in fact, Dodge never had any rights or interest of any kind whatever in the bond.</p> <p>This action is brought to recover back the $1000 with its interest.</p> <p>The Judge directed a nonsuit; which, by consent, is to be taken off, if improperly ordered.</p> <p>It may be urged in defence, that before commencing the suit, the plaintiff was bound to re-assign the quarter of the bond. That would be true, if the thousand dollars had been paid to the defendant as a compensation to him for the one quarter of the bond. But such was not the fact. It was paid to the defendant, not for his use, but for the use of Dodge, in consideration of an interest which Dodge was supposed to have. But Dodge had in fact nothing which he could convey to the plaintiff, and the money was never paid to him. It was therefore wrongfully taken from the plaintiff</p> <p>The authorities which the defendant’s counsel may rely upon as requiring a re-conveyance of property, are only cases where the false representation is as to the value. They do not apply to cases of money obtained through false pretences of the defendant, such as would sustain an indictment against him as a cheat.</p> <p>But the defendant, by his averment, that Dodge owned the quarter, is estopped to deny that fact, and cannot complain, that the plaintiff acted upon the averment as true. If he was bound to re-assign, to whom should the re-assignment be made ? Surely not to the defendant, but to Dodge. How then can the defendant complain, that no re-assignment was made ? He is not injured by the omission.</p> <p>The view, then, to be taken is, that Dodge owned the quarter, and the defendant undertook, as agent for the plaintiff, to purchase it. That the defendant never did purchase it, but falsely pretended that he had, and then made a sham and inoperative conveyance of it to the plaintiff, for the doing of which he fraudulently received of the plaintiff the sum of $1000, and now withholds it. Can the law sanction a proceeding so dishonest ? If it can throw a protection over parties in the practice of such gross and unhallowed transactions, where can safety be found ?</p>

The testator devised and bequeathed to his wife the use of all his real and personal estate, while she should remain his widow. He then bequeathed to her and to three of his five children the sum of five hundred dollars each.

<p>Under a statute of 1786, the Legislature of Massachusetts granted, by a lottery, a large number of lots in fifty townships of land in Maine. Among other necessary proceedings the Act required a plan of each township, with the number of the lot drawn and of the ticket which drew it, to be inserted in a book, which should be authenticated by the signatures and seals of the managers. — Held, that a copy of their proceedings, showing no such authentication, is not sufficient evidence to maintain a title under the Act.</p> <p>This result is not varied by the fact that, in the public offices where the documents should be kept, no higher evidence of title to any lot under the Act, can be found than that of the original, from which such copy was taken.</p> <p>Although it may appear of record that an occupant of land obtained title to an undivided part of it through a succession of owners, the earliest of whom, in his conveyance, recited that the title was derived, under the lottery Act, such occupant is not estopped by such recital in his title deed, unless it appear, by the legal testimony, that a title to the land was acquired under the lottery Act, and that the occupant claims absolutely under that title.</p>

<p>On Report from Nisi Prius, Howard, J. presiding.</p>

On Facts agreed. Assumpsit, for labor in calking a vessel. The defendant built and owned a barque. He contracted with one Tribou to do the calking. Tribou hired the plaintiff to calk. The plaintiff charged his labor to Tribou, who, on account of some disagreement as to the mode of payment, left the bill unsettled. The plaintiff, claiming a lien upon the vessel, brought this suit and seasonably attached the barque.

On Report from Nisi Prizes. Complaint, under the Statute, for flowing land by means of the respondent’s mill-dam. The defence was, that several months prior to the instituting of the complaint, he had sold and conveyed the dam to others, who immediately entered into the use and occupation of it.

On Exceptions from Nisi Prius, Wells, J. presiding. This was a process under the bastardy Act, transferred to this Court, the Judge of the District Court having been of counsel in the case. The complaint and accusation were made three days after the birth of the child. A witness testified that, while in travail, about one hour before the birth of the child, the complainant said the child was the respondent’s. The complainant was then offered as a witness.

<p>'To an application for a mandamus to the treasurer of a town to issue his warrant of distress against the collector of taxes for neglecting to collect a school district tax, it is no defence that there were illegalities in the assessment.</p> <p>'The only subject of inquiry in such a case, is whether the warrant to the ■ collector was issued by assessors legally qualified.</p>

<p>On facts agreed.</p> <p>Petition for partition.</p>

<p>On Report from Nisi Prius, Wells, J. presiding.</p> <p>Dower.</p>

On Exceptions from the District Court, Rice, J. Assumpsit by the payee, who is an attorney-at-law, against the maker of two promissory notes.

On Exceptions from the District Court, Rice, J. Assumpsit by the indorsee against the alleged promissor of a note payable to Charles Y. Poor or order. The note was produced. It was signed by John H. Hall, and the defendant had written his name upon the back of it. Directly above the defendant’s name was that of Charles Y. Poor. The defendant had not been notified as indorser.

On Exceptions from Nisi Prius, Wells, J. Debt on a poor debtor’s relief bond. An execution had issued against the principal defendants on a judgment for $100 damage and four dollars thirty-five cents cost. It was placed for collection in the hands of a constable, who thereupon took the bond upon which this suit is brought.

On Report from Nisi Prius, Wells, J. presiding. Assumpsit. Dean, the supposed trustee, at a stage of the case, when he had neither disclosed or been defaulted, made an affidavit for the principal defendant, which is by consent to be received, if he was admissible as a witness. The plaintiff resisted its admissibility, but the Judge received it. The question of its admissibility is now submitted to the Court.

On Report from Nisi Prius, Wells, J. presiding. Debt, to recover a penalty for the unlawful sale of spirituous liquor. The action is founded upon the 5th section of the Act of 1846, chap. 205. It was appealed from a justice of the peace to the District Court, and thence to this Court.

On exceptions from the District Court, Rice, J. Indictment, for obtaining the horse of one Clark by false and fraudulent pretences. The government proved that the defendant exchanged his mare, for Clark’s horse, and that upon the exchange the defendant represented to Clark that the mare was his property, and that there was no claim of any person upon her; and that he also said he would warrant her to be free and clear of all incumbrances.

Debt upon a six months relief-bond, given by a debtor .with sureties. The defence was, that the debtor had performed one of the alternative conditions of the bond by taking the poor debtor’s oath. To establish this defence, the defendants relied upon a discharge-certificate, given by two justices of the peace and quorum, and also upon said justices’ record of their proceedings.

<p>On Report of legal questions, transferred from the District Court, Rice, J. presiding.</p> <p>Trespass quare clausum fregit.</p> <p>Charles street and James street in Belfast were laid out across some unoccupied land. They were marked upon a plan, but have not been made or accepted. The land belonged to David and James Miller, who laid it into house lots. By division deeds, James conveyed to David these house lots, “ with a reserve” of the two streets. David, by his will, devised the house lots to his daughter, Mrs. Hodgdon. The residue of his estate he devised to his four children, in equal undivided parts.</p> <p>Mrs. Hodgdon conveyed two of the house lots lying oppo"site to each other on James street, bounding each of them by the street.</p> <p>The purchasers, Howes and Blodgett, each built a house on his own side of the street, and claimed that the title of each extended to the centre line of the street.</p> <p>The defendant was employed by Howes and also by Blodgett, to take gravel from the street. For taking that gravel, this action is brought, alleging a breaking and entering into land in Belfast, owned in common by the plaintiff and others.</p> <p>The plaintiff had purchased all the right in the street which belonged, under the residuary devise in the will, to one of the heirs of said James.</p> <p>The general issue was pleaded by the defendant with brief statement, justifying as the servant of Howes, also as servant of Blodgett; also alleging soil and freehold in Howes and Blodgett; also in the plaintiff jointly with Howes and Blodgett ; also denying all title in the plaintiff to the soil.</p> <p>The defendant thereupon objected to the plaintiff’s right of recovering; —</p> <p>1. Because the plaintiff having declared generally for a trespass, upon land in Belfast, without describing any particular close, and the defendant having pleaded soil and freehold, and proved a freehold in the persons, under whom he justified, in some part of the town, it became plaintiff’s duty to make a new assignment, in which he should set out with greater particularity the close in which the trespass was committed, and having failed to do so, his action was gone.</p> <p>2. Because the plaintiff had neither actual nor constructive possession of the locus in quo at the time he commenced his action.</p> <p>3. Because the plaintiff took nothing by his deed from the heir of James Miller, who, in his lifetime, had conveyed all his interest to David Miller; the terms, “ with the reserve of two streets,” contained in said last deed, being terms of grant and not of reservation, and if that language amounts to or is to be construed as a reservation, the defendant is tenant in common with the plaintiff. For the deeds from Mrs. Hodgdon to Blodgett and Howes conveyed a title to the centre of James street, on each side ; the terms “ to” “ by” and “ on” not being terms of exclusion, when used in describing boundaries on roads, streets, rivers, &c.</p> <p>4. The deed from the heir of James Miller to plaintiff is void on the ground of maintenance.</p> <p>By agreement, the defendant’s objections, thus taken, Avere reported to this Court for a legal adjudication.</p> <p>1. The declaration alleged a trespass upon land in Belfast. The defendant justified under Howes and also under Blodgett, and proved that each of them owned land in Belfast. It was therefore necessary that the plaintiff should new assign and designate the land upon which the alleged trespass was committed. Story’s Plead. 569; Ellet v. Pullen, 7 Halsted, 357.</p> <p>2. Possession, actual or constructive, is necessary for the support of trespass quare clausum fregit. 8 Mass. 415; 2 Fairf. 73 ; 22 Maine, 452. The case shows that Howes and Blodgett had been four or five months in possession, and does not show that any party, under Avhom the plaintiff claims, ever entered or disturbed that possession. The action is, therefore, unsustainable.</p> <p>3. The deed from James to David Miller conveyed the street. The words, “ Avith a reserve of the two streets,” were Avords of grant, not of reservation to the grantor. That this was the purpose, is perfectly plain.</p> <p>In the construction of a deed, a Avord inadvertently omitted may be supplied as the sense requires. 4 Greenl. 429.</p> <p>Words in a deed are to be taken most forcibly against the grantor. 21 Maine, 69.</p> <p>If a deed can enure in different ways, the grantee may take it in the way which shall be most to his advantage. 8 Johns. 393 ; 16 Johns. 172.</p> <p>An exception in a deed shall be taken most favorably to the grantee: and if it be not set down or described with certainty, the grantee shall have the benefit, which may arise from such defect. 3 Johns. 370 — 375.</p> <p>A deed of house lots in our villages and towns should not be construed to exclude the streets adjoining them, except upon the clearest language. 18 Maine, 77, 78 ; 3 Kent’s Com. 433.</p> <p>If the streets were excepted out of James Miller’s deed to David Miller, then James and David, after the sale, remained tenants in common of the streets, until they sold ; and after they sold, their grantees became tenants in common : for a reservation in a deed, from one tenant in common to another tenant in common, leaves the reserved part common property still. Hence the plaintiff and defendant (or those under whom defendant justifies) are tenants in common of the locus in quo; and one tenant in common cannot maintain trespass quare clausum against his co-tenant. 10 Pick. 250; 13 Maine, 25.</p> <p>It may be contended that Blodgett and Howes are excluded from James street by the terms of their deeds, and that Mrs. Hodgdon was excluded from said street, by the terms of David Miller’s will; that by, to and from are words of exclusion ; but this is not true, when applied to streets and streams. It is only true when applied to ponds and lakes. 18 Maine, 76 ; 3 Kent’s Com. 433, 434.</p> <p>If the language, in James Miller’s deed to David, amounts to a reservation, it was not intended as a reservation of the soil, but only a reservation of an easement for public use. Where a grantor excepts and reserves all roads and streets on the premises, he does not intend to reserve the soil, but only the public rights.</p> <p>The plaintiff’s deed under which he claims is void on the ground of maintenance. 1 Russell on Crimes, 145 ; 6 Mass. 421; 7 Mass. 77, 78 ; 11 Mass. 554.</p>

On Report from Nisi Prius, Wells, J. presiding. Assumpsit by the owner of five-eighths of a schooner against the owner of the other three-eighths, to recover three eighths of sums paid by the plaintiff for towage and for protest.

Writ of Error, brought by a stockholder in the Frankfort Bank, to reverse a judgment recovered against the bank by the defendant in error. The property of the plaintiff in error had been levied to satisfy the judgment.

<p>On Exceptions from the District Court, Rice, J.</p> <p>Debt. The plaintiffs allege that by the consideration of the County Commissioners, they recovered judgment against the defendants for the sum of $25,08, cost, as by the record thereof appears. The defendants plead “ nul tiel record.”</p> <p>The plaintiffs introduced the records of the County Commissioners, by which it appears, that in the matter of Joel Moore and others, petitioners for a county road in Prospect and Belfast, the Commissioners adjudged, “ Prayer of petitioners denied, as per report on file,” and ordered that the costs arising from the petition and the proceedings thereon, taxed at $25,08, be paid by the petitioners forthwith.</p> <p>The Judge ruled, that the. record was sufficient, until set aside on certiorari, to prove the issue for the plaintiffs. To that ruling the defendants excepted.</p> <p>No power is given by the statute to maintain an action in the name of the county. If any process would lie, it should be in the name of the Treasure)', as the money is to be paid into the County Treasury. Revised Statutes, chap. 99, sect. 12.</p> <p>The county is not a party within the meaning of the statute. Rev. Stat. chap. 25, sect. 7 and 39.</p> <p>But the parties thus entitled to debt, are individuals claiming damages of counties, towns, or individuals by locating roads or ways.</p> <p>The record is defective and insufficient to support the action. It should show preliminary proceedings, as by Rev. Stat. chap. 25, sect. 2, p. 193.</p> <p>It must show that defendants were petitioners. The record does not even name the defendants. Nor does it show to whom the costs should have been paid, or who is to recover them.</p> <p>Costs can arise only between parties litigant. These petitioners for the highway were not litigants. They acted only for the public, as do petitioners to the Legislature for some public enactment. No cost, as cost, can be adjudged against them. The statute speaks nothing of cost, but only of expenses. If the County Commissioners assumed to allow cost, they transcended their authority, and their judgment is but a nullity.</p> <p>Further, the costs or expenses have never been taxed.</p> <p>If a suit could be sustained for costs, it could be only after reasonable notice of the assessment. Sect. 12; 8 Greenl. 207.</p> <p>It may in reply be said that the judgment is valid, until reversed on certiorari. But that position is wholly unsustainable. Chase v. Hathaway, 14 Mass. 222; Hall v. Williams, 6 Pick. 232.</p> <p>The County Commissioners’ Court is created by statute, and is of limited jurisdiction; its powers being subject to a literal construction.</p> <p>Hence if County Commissioners exceed their authority in assessing a tax, their proceedings are merely void. Phil-brick v. Kennebec, 7 Maine, 196.</p> <p>So if a Judge of Probate, in matter within his jurisdiction, omit to order notice, proceedings are void. Smith v. Rice, 11 Mass. 507.</p> <p>See opinion of Jackson, J., in same case, p. 513, 514 ; Chase v. Hathaway, 14 Mass. 222 ; Hall v. Williams, 6 Pick. 232.</p> <p>At the trial, only one point was raised. Nothing but that is row open for discussion. That was, whether the judgment of the County Commissioners was or was not valid, till set aside on certiorari. That point has been fully decided.</p> <p>The correctness or incorrectness of the judgment cannot be reached in this suit. 3 Fairf. 235 : 15 Maine, 73 ; 22 Maine, 128.</p>

On Exceptions from the District Court, Rice, J. Assumpsit. The plaintiff, as indorsee held two small notes, payable to bearer, one of them being against William Davis, the other against Aaron Davis, the father of William. William guarantied the payment of the note against his father, and judgment in favor of the plaintiff was recovered against him for the amount of both notes.

On Exceptions from the District Court, Rice, J. Assumpsit on an account for seaman’s wages. It was proved that the services had been rendered by the plaintiff to the defendant’s intestate; and that on a settlement made Jan’y 5, 1847, the intestate paid the plaintiff some money, and either signed or intended to sign an unnegotiable note for the balance, $98,00. The defendant introduced a receipt signed by the plaintiff of that date, in full for his wages.

Bill in Equity. The bill is sufficiently set forth in the report of the case, 32 Maine, 203. After the disallowance of the demurrers as there ordered, 32 Maine, 210, answers were filed by Whittier and Jones, and evidence was introduced by them and by the plaintiff. The counsel for the plaintiff, at the hearing, moved the Court for leave to amend the bill by inserting, as a defendant, the name of Mrs. Wendell, and for leave to summon her in as a party.

<p>These proceedings are under the Act of 1851, entitled “An Act for the suppression of drinking houses and tippling shops.”</p> <p>Three persons, voters in the town of Saco, complained on oath to the Judge of the Municipal Court as follows : — “ .that they have reason to believe and do believe, that Stillman Gurney, of Saco, now has and keeps spirituous and intoxicating liquors, intended for sale, by him, said Stillman Gurney, deposited in the shop, situated in said Saco, occupied by him, said Stillman Gurney; said Stillman Gurney not being appointed by the selectmen of said Saco es the agent thereof, to sell therein, spirits, wines, or other intoxicating liquors ; whereby said liquors have become forfeited to be destroyed, and said Stillman Gurney has forfeited the sum of twenty dollars, to the use of said Saco, and costs of prosecution.</p> <p>Upon that complaint, a warrant was issued on the 17th of Nov. 1851, requiring, that the officer should enter in the daytime, the shop situated in .said Saco, occupied by him, said Stillman Gurney, and named in said complaint, and search there for the same, and if such liquors be found therein to seize and safely keep the same until final action and decision be had on said complaint, and that he should summon said Gurney forthwith to appear at said Court to be holden at the Municipal Court Room in Saco, on the eighteenth day of November, instant, at ten o’clock in the forenoon, to show cause if any he have, why said liquors should not be declared forfeited and be destroyed, and he be adjudged and held to pay a fine of twenty dollars to the use aforesaid, and costs of prosecution.</p> <p>Upon that warrant, the officer returned as follows: — By virtue of the within warrant, on the seventeenth day'of November, A. D. 1851, I entered in the day time the shop situated in Saco in said county, occupied by Stillman Gurney within named, and there searched for, found and seized the following spirituous and intoxicating liquors and now have the same in my custody and keeping : — to wit, two and one-half pints of Gin. Two Gallons American Gin. Three quarts and one pint of Rum. Two quarts of Cherry Rum. Three quarts and one pint of American Brandy, and fourteen quarts and three-fourths of a quart of New England Rum. And the said Stillman Gurney being known by me to be the owner or keeper of said liquors, I summoned him forthwith to appear before the Judge of the Municipal Court for said town of Saco on the eighteenth day of November, instant, at ten o’clock in the forenoon, to show cause if any he have, why said liquors, should not be declared forfeited, amd be destroyed, and he be adjudged and held to pay a fine of twenty dollars and costs of prosecution.</p> <p>The said Gurney demurred generally to the complaint and warrant. The demurrer was overruled in the District Court; and the case is brought to this Court on exceptions taken by said Gurney.</p> <p>By the provisions of the statute on which this process is founded, a respondent is almost necessarily restricted in his defence to some defects in the proceedings. The process is summary. Property of any value may be destroyed with no proof, except an ex parte complaint, and the return of some- irresponsible officer. The respondent may not be confronted by witnesses ; no proof is required that his possession of the property is illegal; the means of showing his possession to be legal are excluded ; and the respondent may suddenly find himself deprived of ail his estate, and that he is a convicted and committed criminal, without the examination of a single witness against him. In such a process, the government should at least be held to a strict and exact compliance with the statute requisitions.</p> <p>By the second section of the Act, it is necessary that the complaint allege the liquors to be intended for sale in some place in the toiun or city where the complaint is made. This complaint contains no such allegation. The Act does not prohibit a person to keep such liquors ; but only to keep them with intent to sell them, and to sell them there. He may keep them for his own use, or exportation to another country, or for sale in another State or another town.</p> <p>It does not appear, from the complaint, that Gurney was not authorized to sell in the adjoining or some other town. The agent for selling in one town may keep his liquors chiefly in another. The possibility of such a case is indicated by the 12th section of the statute.</p> <p>The counsel also presented many other grounds of defence. But as the foregoing was the only one, passed upon by the Court, dhe other points are omitted here.</p>

<p>Courts of Equity look to the substance rather than to the forms of a contract, and. aim to discover and execute the intentions of the parties.</p> <p>In equity, contracts for the sale of land are not considered merely as executory, but are treated as if executed. The purchaser is regarded as owning the land, and the vendor as owning the purchase money, and as seized of the land, in trust for the purchaser.</p> <p>Such a trust attaches to the land, and binds every one claiming through the vendor, with notice.</p> <p>Neglect to pay at a stipulated pay-day will not, of itself, produce a forfeiture, if the creditor has not considered the time as of the essence of the contract.</p> <p>The receiving of a payment, after the pay-day had expired, is a waiver up to that time, of any forfeiture incurred by the mere delay of payment.</p>

<p>A watch, which the testator has been in the habit of carrying with his person, does not pass by a bequest of his wearing apparel;” nor by a bequest of his “ household furniture.”</p>

Scire Facias against the sureties in a recognizance taken before the Judge of the municipal court of the town of Saco, in-,a prosecution against one Jeremiah Gordon. After oyer of the recognizance, the defendants demurred generally to the declaration. The recognizance was taken on the seventh day of Oct. 1851.

Scire Facias against the sureties of one John Gurney, upon a recognizance taken before the Judge of the Municipal Court of the town of Saco.

On Exceptions from Nisi Prius, Tenney, J. Writ oe Entry. The material facts, as found by the jury upon the evidence, were as follows : — Mrs. Mary Wingate occupied the land from the year 1814 to 1835; viz, from 1814 to 1825, personally and from that time to 1835, by her son Edmund Wingate, as tenant under her. In 1835, she conveyed it to William Wingate under whom the demandant claims.

Assumpsit, on account annexed and on the money counts, for $6554,81. Pleas, limitation. The plaintiff, in support of his claim, and to repel the allegations of the pleas, read some documentary evidence.

<p>A motion to set aside a verdict, on proof, that a juror was related to one of the parties, cannot prevail, if, at the opening of the case to the jury, the ■ party making the motion, was present and knew of the disqualification, and did not object to the juror.</p> <p>The motion will not be aided by proof that the party making it was, at the time of the trial, ignorant of the law creating the disqualification.</p>

<p>A right by prescription to flow land to a given height, by means of a mill dam, cannot be sustained, unless the flowing had caused damage to the owner of the land.</p> <p>Whether a prescriptive right to flow land to a given height, can be proved, in order to reduce the damage occasioned by the dam, when elevated above that height; quern.</p>

On Exceptions from Nisi Prius, Howard, J. presiding. Assumpsit.

On Exceptions from the District Court, Cole, J. ' Indictment for a riot against two defendants, charging that they with others, armed with clubs, &c., unlawfully, riotously, violently and tumultuously assembled themselves together and broke, down and demolished a dwellinghouse, to the terror, &c. The testimony tended to prove, that two persons only were engaged in the physical act charged, but that a third person was aiding and abetting them by his presence.

On Report from Nisi Prius, Howard, 3. presiding. Replevin for eight barrels of ram and for the casks, in which it was contained. Plea, non cepit, with brief statement, justifying the taking by the defendant, as an officer, under a warrant, issued by virtue of the statute of 1861, chap. 211, “for the suppression of drinking-houses and tippling-shops.” The plaintiffs reside in Massachusetts.

<p>On Exceptions from the District Court, Emery, J. presiding.</p> <p>A complaint was made on the 25th of November, 1851, to the Municipal Court of Portland, by three voters of that city, setting forth that they had reason to believe, and did believe, that at said Portland, on, &c., spirituous and intoxicating liquors were and still are kept and deposited and intended for sale, by a person unknown to the complainants, of said Portland; said person unknown not being authorized to sell the same in said Portland, under the provisions of the Act, entitled, “ An Act for the suppression of drinking-houses and tippling-shops,” in a certain building, situated on Plum street, called a shed, in said Portland, whereby said liquors have become forfeited to be destroyed.</p> <p>Wherefore the complainants pray, that due process may be issued to search said shed, where said liquors are believed to be deposited, and if there found, that the same may be seized and safely kept until final action and decision be had thereon.</p> <p>On the same day a warrant upon that complaint was issued by the Municipal Court, directed to the constable, requiring him to enter, in the daytime, the shed before named, and therein search for said liquors, and, if there found, to seize and safely keep the same until final action and decision be had on said complaint.</p> <p>Upon that warrant the constable returned upon the same day, as follows: — “I have entered the shed situated in Portland on Plum street, being the same premises described in the written warrant, and have there made search for spirituous and intoxicating liquors, and have found and seized in said shed one cask of Madeira wine, marked B.; do. marked H. S. L. L. A. L. ; 2 half casks do., ullage ; 2 casks sweet wine, ullage, marked U. D. C. ¡o¡ ; 2 casks port-wine, ullage, marked a key, C. & A.; 1 cask of Sicily wine, ullage, marked C. O. L. L. J.; 1 cask Otard hrandy, and 89 half-pint glass bottles of ale; said liquors being spirituous and intoxicating, and now hold them in my custody until final action is had thereon.</p> <p>“ I have this [same] day advertised the above-described liquors by posting up a notice, in the entry of the Old State House, of the seizure and custody of the same, and by notifying all persons claiming said liquor or part thereof, that they may appear before said Court, and be heard in support of their claim and right to the same, and by leaving a copy of said advertisement with the Judge of the Municipal Court.”</p> <p>Record of the Municipal Court. At a Municipal Court, for the city of Portland, holden 28th February, 1852: — [Then the complaint is recited.]</p> <p>And now such liquors as are described in the warrant issued on said complaint are found and seized by the officer, and have by said officer been advertised agreeably to the provisions of the statute in such case made and provided. Richard R. Robinson, of said Portland, appears and claims the property described and seized ; and the said Robinson claims the same as imported liquor contained in the original packages, and that they were not kept or deposited, and intended for sale in violation of law.</p> <p>And now it not appearing to the Court that said liquors are or were, at the time of the seizure thereof, the property of any city or town in said State, and purchased for sale by the agent thereof for medicinal and mechanical purposes, or that the same were of foreign production, imported under the laws of the United States in accordance therewith, nor that said liquors were not intended for sale in said Portland by a person not authorized to sell the same therein, —</p> <p>It is therefore considered and declared by the Court, that said liquors be and are declared forfeited and ordered to be destroyed ; and Joseph M. Thompson is appointed to witness the destruction ¿hereof.</p> <p>And said Robinson appeals to the District Court for the Western District, to be holden at Portland within and for said county, on the first Tuesday of March next, and gives bond to said State with sureties in the sum of two hundred dollars, to prosecute said appeal and pay all fines and costs which may be awarded against him.</p> <p>The appeal was duly entered in the District Court. And the defendant’s counsel there moved that the prosecution be dismissed, for the reason that the complaint was insufficient, because it was not alleged in the complaint that the liquors were intended for sale in the place where they were kept and deposited, or in any specific place, or in the city or county where the complaint was made ; and also for the reason that it did not appear that the court below had jurisdiction, or that the property had been advertised, or the notice given, required by the statute.</p> <p>The jury were impanneled in the usual manner in which they are impanneled in criminal trials, and directed if they found the defendant guilty to say so, and if they found him not guilty to say so, and no more. The counsel for claimant objected to this form of impanneling the jury, and contended that the issue of guilty or not guilty was not the proper issue to be presented to the jury. No other plea was put in by the claimant, than the written claim and answer filed in the Municipal Court, and set forth in the record which makes part of the case.</p> <p>It was admitted by the claimant and on the part of the government, that the liquors seized were the property of said Robinson. The government introduced evidence to prove that the liquors described in the return were seized in the place described in the warrant, to wit, the shed in Plum street ; but there was no evidence that the liquors were intended for sale in the place where they were seized, or where they were kept and deposited.</p> <p>Counsel for defendant contended, that the evidence showed that the liquors seized were deposited for storage, and were not intended or offered for sale." Counsel for government contended, that the evidence tended to show that the liquors were intended for sale by defendant, though not in the shed.</p> <p>The counsel for the claimant requested the Court to give the following instructions : “ That the provision in the eleventh section of the Act, entitled an ‘Act for the suppression of drinking-houses and tippling-shops,’ which provides that if the owner or keeper of the liquor seized fails to appear, or unless he can show by positive proof that said liquors are of foreign production, &c., the liquor shall be declared forfeited, &c., and the owner or keeper shall pay a fine of twenty dollars, &c., is unconstitutional; that the provision, in said eleventh section, that the custom-house certificates of importation and proofs of marks on the casks or packages corresponding thereto, shall not be received as evidence that the liquors contained in said packages are those actually imported therein, is repugnant to the laws of the United States, and is also unconstitutional ; that the provisions in said section, which create a forfeiture or impose a penalty upon oath or affirmation not made in the presence of the defendant, and without requiring the production of any witnesses against him, are unconstitutional and void; that the eleventh section of said Act is unconstitutional ; that the provision in the thirteenth section, imposing additional penalties upon a party for claiming his constitutional right of appeal from a tribunal, where he cannot have a trial by jury, to a court in which he may have the same, is unconstitutional; that it should be alleged in the complaint and proved at the trial,-that the liquors were intended for sale in the place where the search is made; that it should be averred in the complaint, and proved at the trial, that the liquors were intended for sale by the person with whom they are alleged to be kept and deposited.”</p> <p>The Court declined to give the instructions requested, but did instruct the jury, that it was not necessary to aver or prove that the liquors were intended for sale in the place where they were kept or deposited, or in any particular place, but that they might inquire whether they were or not intended for sale by the defendant.</p> <p>The jury returned a verdict of guilty.</p> <p>Counsel for the defendant moved that the verdict be set aside, for the reason that it was not responsive to any plea in the case, and that it was not a finding upon any question properly presented or submitted to them ; but the Court overruled the motion. To the foregoing rulings and instructions the said Robinson excepted, and his exceptions were allowed.</p>

On Report from Nisi Prius, Shepley, C. J. presiding. Assumpsit. The trustees come, and by their disclosures admit indebtedness to the principal defendants. The principal defendants filed a plea in abatement. This was followed by a replication and a rejoinder, upon which an issue to the county was taken. The ground of the claim to have the writ abated, was, that the suit is brought in the wrong county.

<p>This is an appeal, between the principal parties, taken from the District Court.</p>

This is a motion by the defendant for a new trial, on the ground, that the verdict was against the evidence. The mover made up what he considered a report of the facts, but did not present it to the plaintiff’s counsel, until the day before the commencement of this term. It was objected to, because presented too late.

Real Action. In order to prove the foreclosure of a mortgage which one Dougherty had given to the demandant, the tenant offered to read from the newspaper the advertisement wherein the demandant had given notice that the condition of the mortgage had been broken, and that he claimed to foreclose. This was objected to by the demandant’s counsel, and thereupon the tenant’s counsel read it from the records of the registry office.

The plantation of Bradford had furnished relief in 1828, to one Cunningham, as a pauper. Afterwards, in 1831, the plantation was incorporated into the town of Bradford, at which time Cunningham had his home within its limits. In 1844, he fell into distress in the town of Kirkland, where he received supplies as a pauper from the overseers of the poor of that town. This suit is brought to recover for those supplies.

On facts agreed. Writ of entry. — William Hooper was once the proprietor of the land. While he was the owner, it was attached in a suit in the name of Hollis Parlin against him. After the attachment, he conveyed the land by a title which has been regularly deduced to the demandant. In Parlin’s suite, a judgment was recovered against Hooper, and the land was duly levied under it.

The defendant offered two depositions, the captions of which stated, “ that the adverse party was notified to attend.” Annexed to one of the depositions was an original notification, upon which was a return by an officer ; but the caption contained no reference to that notification, which was as follows : — “ Penobscot ss. Oct. 18, 1850. “ I have made search for the within named adverse party, or E. G. Rawson, his attorney, and can find neither within my precinct.

Smith owed Kirby. Kirby owed the plaintiff. To discharge his debt to Kirby, Smith delivered to the plaintiff the note now iu suit for $1400, the plaintiff knowing that it was made for that purpose, and the plaintiff gave up a note he had against Kirby, but the evidence did not show its amount. The defence is that the note now in suit was given for a larger sum than was due from Smith to Kirby.

<p>Petition for a review, asking for an order of notice upon the adverse party.</p>

Motion by the defendants for a new trial, on the ground that the verdict was against evidence. The defendant’s counsel had drawn up a report of the evidence, and was proceeding to read it to the Court. The opposing counsel objected to it, because not filed by the middle of vacation.

'Of amending petitions for review. This was a petition for the review of an action in which the petitioner had been defaulted. There were three petitioners and they set Forth, in the petition, ihat the default was occasioned by a mistake, and without their fault, and stated the circumstances under which it took place. The petition however, did not mention the names of any witnesses, by whom they expected to prove those circumstances.

Ordered, that the following questions be submitted for the opinion of the Supreme Judicial Court. Question 1st. Has the Legislature constitutional power, after a general representative apportionment has been made, in conformity with the constitution, to alter the Representative Districts so established, until the next general apportionment ?

<p>At the Waldo County session, 1851, two persons were indicted for murder. Vide ante p. 583. C. J. Siiepley has kindly consented to the publication of the interesting charge made by him to the Grand Jury upon that occasion.</p>