Volume 34 — Maine Reports

Os Exceptions from the District Court, Cole, J. Debt to recover the statute penalty for rescuing certain swine, which the plaintiff had found going at large and had taken up for the purpose of impounding. The writ was framed to attach the goods or estate of the defendant, but omitted to give any direction as to the taking of his body. For that omission, the defendant, at the trial before the justice, moved that the writ be quashed. The motion was overruled.

<p>An unqualified repeal of a penal statute, upon which a pending action was founded, extinguishes the suit; and no costs are recoverable by either party.</p>

On Exceptions from Nisi Prius, Howabd, J. presiding. Assumpsit. The principal defendant, pursuant to R. S. chap. 148, sect. 10, moved that the execution, to be issued in this suit, should be so framed as to run, not against his body, but against his estate only, and oifered to submit himself to examination, as to his property affairs.

<p>On FACTS AGREED.</p> <p>Debt against principal and surety on a poor debtor’s relief bond, taken on execution issued upon a judgment for cost.</p> <p>Within the six months prescribed in the bond for the performance of its conditions, the judgment creditor received payment of the judgment, interest and expenses, and discharged both the judgment and the bond. After the giving of that discharge, the attorney, who had aided in obtaining the judgment, brought this action, to recover the amount of his fees and disbursements, being something more than half of amount of the judgment, for which he claims a lien on the bond.</p> <p>The attorney’s lien upon the judgment is not controverted, neither do we pretend that his remedy upon the judgment is impaired by the creditor’s discharge of it.</p> <p>But the lien never extended to the bond, which was given exclusively to the creditor. In the bond the attorney had no rights, and consequently the creditor’s discharge of it is effectual. Grimes v. Turner, 16 Maine, 353 ; Storer v. Hyde, 22 Maine, 318.</p> <p>The suit upon the bond creates new parties, not known in the original judgment. A recovery upon it would create a liability never contemplated by either of the parties. R. S. chap. 148, sect. 20.</p> <p>The surety cannot be presumed to have subjected himself to any liability, except, that the principal should faithfully perform the condition, to the creditor, to whom the bond was expressly given. If any relative obligation to the attorney can be claimed, it should have been asserted, and brought home by formal notice to the surety.</p>

<p>On FACTS AGREED.</p> <p>Writ of entry to recover certain flats, lying between high water and low water marks, upon Fore river, an arm of the sea.</p> <p>So far as involved in the present controversy, the demand-ants are to be considered as owning one quarter of the flats, by inheritance from the late William Vaughan, unless the same were included in his deed to Donnell, under whom the tenants claim. That deed conveyed a lot or square of land extending down to and bounded by Fore river, “ reserving a street through said square of forty feet in width, at the distance of 130 feet south of Bridge street, and at right angles with said Bridge street, togethei' with the flats ; viz. all my right to the same in front of- said square to the channel. To have and to hold the same with all the privileges and appurtenances thereof to said Donnell.”</p> <p>Judgment is to be rendered in accordance with the legal rights of the parties.</p> <p>conceded that the deed, under which the tenants claim, would convey the flats, except for the reservation contained in it; but he contended that, by the reservation, the flats were retained by Vaughan, and did not pass by the deed. Sprague v. Snow, 4 Pick. 54; Rackley v. Sprague, 19 Maine, 346 ; Kennebec F. Co. v. Bradstreei, 28 Maine, 377.</p>

On Report from Nisi Prius, Wells, J. presiding. Trover for a building, sold as the property of one Hancock, by Brackett, a deputy sheriff, one of the defendants, upon an execution in favor of Pride, the other defendant. It appeared that one Gross had taken a lease of a lot of land for ten years and erected the building upon it. The plaintiff, to prove his ownership, read an assignment of the lease and a bill of sale of the building, from Gross to himself.

<p>Property, held by a religious society as a ministerial fund, is to be assessed to the treasurer.</p> <p>A fund was vested in a board of trustees, under charge that its interest should be annually paid to support a minister of certain specified qualifications, statedly preaching in a house of public worship to be located in a prescribed portion of the town : —</p> <p>That, together with another portion of the town, was afterwards incorporated into a parish, and the parish settled a minister who statedly preached in a house of public worship in the prescribed locality: —</p> <p>Held, that the fund in the hands of the trustees was not property held by the parish as a ministerial fund; and that the treasurer of the board of trustees, is not, ex ojjieio, the treasurer of the parish; and that taxes upon the fund cannot be assessed to him.</p>

<p>Assumpsit upon an unwitnessed promissory note of $1200, dated in 1839, payable to William Evans or order, and by him indorsed to the plaintiff “ without recourse.” There was upon the note an indorsement of $ 125 under date of 4th January, 1845. The writ was dated 26th Dec. 1850.</p> <p>To avoid the limitation bar, the plaintiff released the payee from all liabilities in relation to the note, and relied upon the testimony he would give, if admissible, and it was agreed that he would testify that the defendant paid the $ 125 on said 4th January, 1845, and requested the witness to indorse it upon the note, which he accordingly did at that time, and that he afterwards indorsed the note to the plaintiff for the consideration of one dollar, and has now no interest in it.</p>

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

This is a petition for partition. It was entered at April term, 1850. At the November term following, an order of notice was issued in the usual form, and published, as ordered, returnable on the 30th day of December, 1850. On that day, no appearance being made in defence, the usual proclamation was made, and interlocutory judgment for partition was entered. Commissioners were then appointed, who made their return and report at April term, 1851.

On Exceptions from the District Court, Emery, J. Indictment for a common nuisance. Plea, not guilty.

Edward D. Preble died possessed of property, real and personal, to the amount of several thousand dollars, leaving a widow and three minor children. His mother survived him, and, by her will, appointed the appellants as her executors, and entrusted to them the entire care and management of a large estate for the period of twenty years for the benefit of Edward’s children.

On Exceptions, from Nisi Prius, Howard, J. presiding. Assumpsit upon a promissory note.

Bill in Equity to redeem real estate mortgaged. The plaintiff is the widow of John Simonton, who died in 1851, and who, in 1844, mortgaged the land, by a deed in which the plaintiff relinquished her right of dower. In 1847, the land was sold for taxes to one Lord, who afterwards conveyed his title to the mortgagee. Through several conveyances, the defendant became the assignee under the mortgagee and also the assignee under the mortgager.

On Exceptions from the District Court, Emery, J. Prosecution for selling intoxicating liquor in violation of the statute. The complaint alleged, that the sale was made “on or about” the thirty-first day of January, 1852.

On Report from Nisi Prius, Wells, J. presiding. Assumpsit upon two promissory notes. It appeared that, after making the notes, the defendant, by a sealed instrument, assigned all his property for the benefit of his creditors pro rata. The assignment contained a stipulation to be subscribed by the creditors, and assenting to the assignment, and agreeing to accept the dividends, which when paid were to be a discharge of their respective claims.

On Report from Nisi Prius, Wells, J. Assumpsit for $136,74, money had and received, being the amount of interest money collected by the defendant, a deputy sheriff, upon notes claimed by the plaintiffs. 1. The action is not maintainable in the name of all the plaintiffs. The assignment on which the whole claim rests, was made to Balch only.

On Report from Nisi Prius, Wells, J. Assumpsit. — The defendant, in 1841, gave his negotiable note, of $1500 and interest, to one Ellis, by whom it was negotiated to Ephraim Woodman as collateral security for a loan of about $338. Ephraim Woodman negotiated it, before the pay-day, to Oliver O. Woodman, in whose name a judgment was recovered upon it in June, 1850, for the sum of $2285, damage, besides costs.

<p>The statute, requiring the caption of a deposition to certify that the deponent -was sworn according to law, may he complied with by a statement of the language used in the administration of the oath, and if it appears to have been what the law requires, it is sufficient.</p> <p>A certificate that “the deponent was first sworn and was examined according to law,” is insufficient.</p> <p>A judgment against a trustee will not operate as a bar to protect him against an action by the principal defendant, unless a demand for the goods, effects and credits had been made within thirty days from the judgment by an officer holding the execution.</p> <p>Neither will such judgment operate as such a bar, unless the trustee had delivered or accounted for the goods, effects and credits upon the judgment.</p>

<p>In the assessment of damage, done to an individual by the establishment of a city street, which would require a removal of his building, a provision that he should not he required to do it, until necessary for the opening of the street, does not require any special notice to him of the time for the removal.</p> <p>That time would he sufficiently indicated to him by the progress made in the formation of the street.</p> <p>One who abuses the authority, vested in him by law for a special purpose, will he treated as having had no authority for any part of his acts.</p> <p>Thus if an officer, who had authority to remove from the street the building of another person, should after removing it, make sale of a part of its materials, he will he deemed a trespasser ab initio, and held chargeable for the whole value of the building.</p>

Writ of ENTRY. The demandants claim as heirs at law of their father Tobias Jones. The evidence introduced by them proved, that Tobias was a mulatto ; that their mother, (who was married to him fifty-nine years ago,) was a daughter of a father who was entirely white, and of a mother who was one-eighth Indian, she having been the child of a man who was a quarter Indian.

<p>Where the grantor of land remains in possession after the conveyance, a legal presumption arises that he is tenant to the grantee.</p> <p>Upon that presumption, if uncontrolled, assumpsit for use and occupation may be maintained.</p> <p>That presumption may he repelled by parol proof.</p> <p>After notice to quit, the grantee may elect to treat the grantor, if in possession, as holding by -wrong, and not as a tenant.</p> <p>The bringing of a writ of entry is such an election.</p> <p>Such -writ of entry with possession thereby obtained, precludes a recovery for use and occupation.</p>

On Facts agreed. Case against the sheriff for the default of his deputy in neglecting to take a sufficient bond in a replevin suit against the plaintiff for a yoke of oxen. Judgment in that suit was rendered for this plaintiff for a return of the property. The value of the oxen was alleged in the replevin writ to be $30, and the direction in the writ was to take a bond in the sum of $60. The value of the oxen, at the time of replevying, was $35.

<p>On Report from Nisi Prius, Tenney, J. presiding.</p> <p>Writ op Entry for two small parcels of land in Bangor.</p> <p>The evidence was submitted to the Court, with power to draw inferences of fact.</p> <p>As to the first parcel, called B, the demandant read a mortgage of a thirty-eight acre lot, including parcel B, made in 1835 to Philip Coombs to secure certain notes payable in 1839, and assigned by said Philip to the demandant in 1843. He also introduced five of the mortgage notes unindorsed.</p> <p>The tenant claims title to the thirty-eight acre lot by a collector’s deed to himself, upon a sale for a city tax assessed in 1839 against said Philip Coombs. He also proved a levy of the thirty-eight acre lot, made in 1839, on execution against Philip Coombs; and a conveyance made in 1843, from the levying creditor to the tenant.</p> <p>As to the second parcel, called C, the demandant read another mortgage, made in 1835, to Philip Coombs, and assigned to the demandant in 1844, and introduced four of the mortgage notes indorsed in blank.</p> <p>The tenant claimed title to lot C, under the same tax deed. Japheth Gilman, a witness for the tenant, testified that Philip Coombs formerly occupied this parcel. One of the assessors of 1840 testified that in that year, having in his hand said Philip Coombs’ inventory of taxables for 1839, he called for an inventory for 1840; and Coombs gave in the same land which had been taxed to him in 1840; that he gave in the thirty-eight acre lot and also the lot C.</p> <p>Tbe tenant also introduced a disclosure made in 1844, under oath, by Philip Coombs and this demandant.</p>

On Report from Nisi Prius, Tenney, J. presiding. Assumpsit. This defendant, as payee of a draft, had recovered judgment against this plaintiff as drawer. 30 Maine, 299. After payment of that judgment, this action is brought upon the promise, which was offered to be proved in that suit.

<p>On Facts agreed.</p> <p>Assumpsit, by the indorsee against the makers of a note payable to the Protection Insurance Company or order, for “$271,25, with such additional premium as may arise on policy No. 50, issued at the Calais agency.”</p>

<p>Debt, upon an administration bond.</p> <p>The administratrix, under'a license from the Probate Court, sold land belonging to the intestate, and received of the purchaser his negotiable notes, made payable to several of the creditors of the estate, to the exact amount of their respective debts. To secure these notes, the purchaser gave a mortgage of the same land, jointly to the several payees of said notes. The creditors, (the said payees,) accepted the notes, and gave up to - the mortgager the notes which they held against the intestate. Moulton, one of the payees, assigned to Wiggin his note and his interest in the mortgage. The maker of the note became insolvent, and the title under the mortgage failed, because the administratrix had not, prior to her sale of the land, taken the oath required by law in such cases.</p> <p>This suit is brought by the procurement and for the benefit of Wiggin.</p>

On Facts agreed. Assumpsit against the three members of a co-partnership, which had been dissolved before the date of the writ. Norton, one of the defendants, having removed from the State, the plaintiff discontinued as to him, because no service had been made upon him. After the commencement of the suit, Norton acknowledged in writing that the debt was justly due from the partnership.

<p>Where one has contracted to labor in the service of another during a given time, at a specified rate of wages, if he be discharged by his employer, before the expiration of the time, without justifiable cause, he is entitled to recover damages.</p> <p>But if he voluntarily quits the service before the expiration of the time, without justifiable cause, he can recover nothing for his previous labor.</p> <p>In a case, presented on exceptions, it is the province of the Court to decide, not upon the general merits of the case, but merely upon the legal correctness of the proceedings excepted to.</p>

On Exceptions from the District Court, Hathaway, J. Assumpsit, on a count for materials and labor furnished, and one on an account for articles sold and delivered. The account was for stereotype plates, $18, alteration of same $4, and some interest and expressage, making in all $25,04.

On Exceptions from Nisi Prius, Tenney, J. presiding. Assumpsit, for driving a large quantity of the defendants’ logs, (about one and three fourths millions of feet,) down the Penobscot river, and claiming to enforce the statute lien against them. It appears, that the plaintiffs were driving a large quantity of their own logs, and also those of some other owners, according to contracts between them.

<p>On Exceptions from the District Court, Hathaway, J. presiding.</p> <p>Assumpsit on an account for groceries, $37,51. The defendant introduced some receipts from the plaintiff amounting to $38, “ to be allowed on account.”</p> <p>A witness testified that, beside the grocery bill, the defendant had purchased of the plaintiff a quantity of spirituous liquors, charged on another bill, to the amount of $53,88, and that the receipts for $38 were for moneys paid on account of the liquors. On the question, whether the plaintiff had license to sell liquors, no evidence was given.</p> <p>The Judge instructed the jury that, in the absence of opposing proof, the plaintiff had a right to sell the liquors, but, if the evidence satisfied them, that the plaintiff sold the liquors in violation of law, then the moneys for which the receipts, (amounting to $38,) were given, should be appropriated to the account for the groceries, and the verdict should be for the defendant. The plaintiff excepted.</p>

On Report from Nisi Prius, Tenney, J. presiding. The first and second actions are writs of entry. The third is for obstructing a passage way. The cases will be better understood by referring to the diagram. The tenants occupy and claim the lot lying within the lines A, C, and D, Mr. Barry having a deed of the East part, and Mrs. Barry having a deed of the West part. Their title is derived from Rufus Dwinel.

On Facts agreed. The plaintiffs recovered a judgment against Fuller and the other defendants as his sureties on a replevin bond; Fuller also recovered a judgment against the plaintiffs for a smaller sum, and he now moves, that his judgment be set-off, so far as it will go, upon the judgment against him and sureties.

On Exceptions from the District Court, Hathaway, J. The question is upon the chavgeability of the supposed trustee. By his disclosure, the following appear to have been the facts, so far as considered by the Court to be material. Wood, being indebted to the trustee, delivered to him an indorsed negotiable note for a larger sum, and took back an obligation by which the trustee bound himself to pay to Wood the surplus when collected.

<p>On Report from Nisi Prius, Tenney, J. presiding.</p> <p>Replevin of the person.</p> <p>Brief statement, that the plaintiff was an enlisted soldier in the army of the United States; that he deserted before the term of his enlistment had expired; and that the defendant, as a recruiting officer of the army, arrested and held him in custody.</p> <p>It was in proof for the plaintiff that he was confined by order of the defendant in the county jail, ten days until taken out upon this writ.</p> <p>For the defendant, witnesses testified that they had seen the plaintiff in the military service of the United States, and that he had several times recently admitted himself to be an enlisted soldier and a deserter.</p> <p>The defendant introduced the following documentary evidence : —</p> <p>1. A paper purporting to be an enlistment for five years by the plaintiff in 1839, certified as having been subscribed and sworn to by him before A. J. Brown, justice of the. peace, it being admitted that Brown would testify to its truth; but it is denied that the plaintiff is the person who signed it. This document also contained an allegation signed by J. B. Hill, Acting Lieutenant, as to the description of the plaintiff’s person, and that he was sober, when he enlisted.</p> <p>2. A copy of the defendant’s commission as a brevet second lieutenant in the United States service, attested by the Adjutant General.</p> <p>3. Extracts from the army roll of the United States. These extracts contained statements of the plaintiff’s enlistment in 1839 for five years; of his desertion in 1840 ; of his joining in October, 1841, from desertion, and being put in confinement ; of his wages being paid up to December 31, 1839, and of his second desertion in December, 1841.</p> <p>The defendant also proved by oral testimony, that he was acting as a lieutenant in the service of the United States, at the time of the plaintiff’s arrest and confinement in the county jail.</p> <p>He also proved that said Hill, at the time of the enlistment, was an acting lieutenant and recruiting officer, and that his signature is genuine. All the foregoing proofs, documentary and oral, were seasonably objected to.</p> <p>The case was then submitted to the Court with power to draw inferences of facts.</p> <p>1. We contend, that the process will lie because the defendant, as an officer, had no right to imprison a soldier in the comity jail. No such power is given by statute, and the assumption of it is a high handed violation of the citizen’s rights. To be seized upon suspicion, and thrown into the cell with felons, without warrant, and that too by an officer unknown to our State laws, is an aggression which the law demands to be rebuked. Even the case of persons convicted of crimes, under the laws of the United States, cannot be imprisoned in our common jails, except by virtue of the statute providing for the case. U. S. Stat. March 3, 1825, <§> 15; Gordon’s Dig. 1108.</p> <p>2. We object for the reason, that here was no warrant or other process, authorizing the arrest and imprisonment. This is the express case, provided in the Act regulating this process. R. S. chap. 142, $ 1.</p> <p>It is a plain infraction of the right provided for in the, Constitution of Maine, Art. 1, <§. 5, and Constitution of U. S. Art. 5 of Amendments ; 2 Kent’s Com. 32 and note.</p> <p>Desertion is a crime; in war a capital one, and at all times followed by most severe punishment, in addition to which is inflicted the penalty of serving out the time of his enlistment. Gordon’s Dig. 1025, 1010.</p> <p>Every one, charged as a deserter, must be tried on warrant before he can be imprisoned. Gordon’s Dig. 1100.</p> <p>The power of arresting and depriving a person of his liberty, without legal process, is averse to our system of government ; and any infraction of personal liberty is watched with jealousy.</p> <p>The right of courts to punish for contempts can only be exercised on view of the offence, by a judicial authority, having the power from the State, and this, too, carried into effect by a warrant from the bench.</p> <p>The fugitive from service can only be taken upon a warrant issued upon a hearing before a competent tribunal established for the purpose.</p> <p>The fugitive from justice is, too, protected against an unwarrantable seizure of his person.</p> <p>Rioters and unlawful assemblies may be dispersed only by high civil officers, and arrests made only so far as necessary to quell the disturbance and held only until proper warrants may be issued. And even this power is only given in consideration of the necessity of prompt and immediate action.</p> <p>Criminals may be arrested by officers on strong suspicion, but can only be detained until a warrant may be issued by competent authority.</p> <p>If asked what course should the defendant pursue ? I answer, if there is no course under the “ fugitive from service” or “ fugitive from justice” Acts, or some other, then it is a casus omissus; one not provided for, and the military man, who seeks to seize upon a supposed deserter, is in the same condition that the slaveholder was before the Act was passed for his relief, when he found his human chattels in a free State, or in the condition that the loser by theft was, when the thief was escaped into another State or country, before the Acts and treaties were in force for the reclamation of such fugitives. That the law does not allow the exercise of a power, is a poor excuse for exercising it.</p> <p>3. If any right to arrest ever existed, the imprisonment was too long protracted.</p> <p>4. No legal proof of defendant’s being qualified for any command or to exercise any power as an officer. He must be sworn. Of this there can be no doubt. The copy of his commission is certainly inadmissible, and no proof of the oath is pretended. The only question which arises is, whether he could be proved a duly qualified officer by evidence of his acting as such.</p> <p>Where questions arise collaterally in a case, involving the due exercise of an official authority, proof of such officer acting in the capacity claimed, with a general recognition of his acts, is evidence admissible to prove such office. But there must be such an acting as implies or presupposes a public assent to, or recognition of the capacity in which he acts, and the proof can only be offered when the question arises collaterally either to the party or to the cause. When, however, the right to exercise the office is the precise question at issue, the party justifying, as such officer, must prove his right. Cottrill v. Myrick, 3 Fairf. 234; Fowler v. Bebee, 9 Mass. 235.</p> <p>This doctrine is recognized throughout the cases, as in Doty v. Gorham, 5 Pick. 489; Nason v. Dillingham, 15 Mass. 171; Bucknam v. Ruggles, 15 Mass. 182.</p> <p>The rule admitting such testimony of holding office is only applicable where tire general convenience requires. Where the question arises collaterally, it is not expected that third parties have the power to prove the authority. 1 Greenl. on Ev. sect. 83.</p> <p>But the reason does not apply, where the party justifying is on trial himself. Especially when his whole defence is based upon the legality of his office.</p> <p>An important distinction, which serves to explain some apparent discrepancies in the application of the rule, exists between those officers connected with the Court, and those who may be said to act in pais. 3 Phil, on Ev., Hill’s notes, 239.</p> <p>In the latter case, proof of the office is required, whereas the Court, in the former, will take judicial knowledge of the fact of office.</p> <p>5. No proof of plaintiff's identity with the person named in the enlistment. The enlistment is not proved. The paper offered in evidence on that point was inadmissible.</p> <p>6. Plaintiff had a right to leave the service under the facts shown. By stat. of U. S. March 16, 1802, sect. 13, vol. 2, page 135, enacted — The corps shall be paid in such manner that the arrears shall at no time exceed two months. Gordon’s Dig. No. 3473.</p> <p>Same vol. page 362, Art. 20, proof of payment is a prerequisite before the party can be convicted of desertion and punished. Gordon’s Dig. 3513. By the evidence introduced, it appears that he did not desert until July 4, 1840, and he had received pay only to Dec. 31, 1839. The enlistment is a contract, and its validity is no less strong against the United States than against an individual.</p>

On Exceptions from Nisi Prius, Tenney, J. presiding. Writ of Entry. The demandant introduced, subject to objection, the office copy of a deed of the land from David Webster to James Webster, executed and acknowledged in 1809 ; also a deed to himself from Andrew H. White, of Liverpool in Nova Scotia, and Susan his wife, in her right, executed in 1851. Susan was the sole heir of said James Webster, who was a citizen of this State. She was bom in Nova Scotia in 1822.

On Facts agreed. Writ of Entry, claiming mesne profits. In 1839, the demandant recovered judgment for dower against the tenant, who had purchased the whole lot by warranty deed from William Bruce. The judgment was founded upon an award of referees, under a rule of Court.

On Facts agreed. Debt on judgment. The defence was, that an execution, issued on the judgment, had been satisfied by a levy of real estate. On the other hand, it was contended that the supposed levy was defective and void.

<p>There are cases in which the time agreed upon for the payment of money, is not of the essence of the contract.</p> <p>Eights, claimed under this principle, can be enforced only by process in equity.</p> <p>Thus, for a party who claims under a tender, made after the agreed pay-day, and relies upon circumstances to justify the delay, a suit at law is not an available remedy, although the time of payment was not of the essence of the contract.</p>

On Facts agreed. If the action is sustainable a default is to be entered. The plaintiffs declare “in a plea of the case.” The declaration then proceeds in the usual form of a count in trover, averring the conversion of a mare, the property of the plaintiffs.

ON Facts agreed. Assumpsit by the indorsees against the makers of a promissory note. By agreement of parties, the case was to be nonsuited, defaulted or to stand for trial, as the Court should determine.

<p>On Report from Nisi Prius, Tenney, J. presiding.</p> <p>Writ of Entry brought in 1850. The demandant read a deed of the land from the State to herself, made in 1845. At the date of the deed she was the wife of Leonard Eldridge, and has so continued to the present time.</p> <p>At the time of the trial, the tenant filed a plea of general issue, with brief statement that he holds merely as tenant to William A. Preble.</p> <p>The demandant objected to the plea, on the ground that it was in the nature of a plea in abatement, and should have been filed at an earlier stage of the case, as prescribed for such pleas by the Rules of the Court.</p> <p>The tenant deduced title in himself, under a levy of the land, as the property of Leonard Eldridge, made in 1846, in virtue of a judgment recovered by the assignee in bankruptcy of one Nickerson. The records pertaining to the levy were objected to, for the alleged reasons, “ that there was no evidence that the proceedings in the bankruptcy court were regular and also because Leonard Eldridge had no leviable interest in the land.</p> <p>A nonsuit or default is to be entered according to the rights of the parties.</p> <p>1. By the statute of 1844, chap. 117, §> 1, the demand-ant was authorized to purchase and hold the property for her own and separate use. The proviso to that enactment, requiring her to show that the estate did not come from her husband, was repealed by the Act of 1847, chap. 27, <§> 1. The case is, therefore, relieved from that proviso, and the deed is sufficient evidence of a title in the demandant, indefeasible by any act of her husband or of his creditors. To this extent, these statutes, in connection with that of 1848, chap. 73, § 1, have modified the principles of the common law. By the Act of 1848, “any married woman, who is seized and possessed of property, real or personal, may commence and prosecute any action at law or equity in her own name.”</p> <p>2. The general issue was pleaded with brief statement. The general issue claims the freehold. Stearns on Real Actions, chap. 4, <§» 16; 10 N. H. 305; 8 N. H. 477. But the facts, alleged in the brief statement, amount to a special non-tenure. Non-tenure cannot be pleaded in this form. But, if it can, it was not filed at the required term. Rule of Court, No. 18. Another objection to the plea is, that it relies upon certain alleged facts, and yet is not verified by affidavit. Fogg v. Fogg, 31 Maine, 302; Rule of Court, No. 18.</p> <p>If the facts set forth in the brief statement had been seasonably pleaded, we might have disproved them.</p> <p>In short, the. whole pleadings can be viewed only as the general issue. The demandant, therefore, is entitled to recover, unless the tenant exhibit a better title. But he makes no title except under the levy of an execution against the husband. The proof of that levy was inadmissible. The husband had no interest in the land. The title was in the demandant from the beginning, and there was no evidence that any part of the consideration for the land moved from the husband.</p> <p>But suppose a life interest did pass by the levy, it was after-wards conveyed to W. A. Preble, and remained in him at the time of the suit. The tenant’s attempt to connect himself with W. A. Preble fails, because, 1st, the supposed tenancy was not pleaded in abatement, and 2d, he is precluded by the general issue, from proving such tenancy. Special non-tenure cannot be proved under the general issue. Mechanic's Bank v. Williams, 17 Pick. 438; Alden v. Murdock, 13 Mass. 256 ; Stearns on Real Actions, chap. 4, § 22.</p>

<p>Bill in Equity, alleging in substance, the following facts.</p> <p>Two persons owned a tract of land as tenants in common. One of them conveyed his undivided half to McLaughlin, taking back a mortgage of it to secure the purchase money. The other deeded his undivided half, and it became, through mesne conveyances, the property of Goodhue. McLaughlin and Goodhue divided the land; McLaughlin deeding the South half by metes and bounds to Goodhue, and Goodhue deeding the North half by metes and bounds to McLaughlin. Goodhue then, by metes and bounds, conveyed that (South) half by a deed, under which the plaintiffs hold; and he also deeded to them, afterwards, an undivided half of the whole tract.</p> <p>The mortgagee entered to foreclose the mortgage, given by McLaughlin, and then assigned the mortgage to one Porter, by whom it was fully foreclosed.</p> <p>Upon a petition for partition by these plaintiffs against Porter, 27 Maine, 405, it was held that Goodhue’s title was limited, by the division deeds, to the South half in severalty, and that, therefore, his subsequent deed to the plaintiffs of an undivided half was inoperative; and that, as the plaintiffs had failed to show any undivided interest in the land, their petition must be dismissed.</p> <p>Pending that process, Porter’s right, through intervening deeds, was duly conveyed to these defendants, whereby they became the owners of an undivided half of the tract.</p> <p>The defendants then entered into possession both of the North and of the South halves, and received rent therefor from their lessees.</p> <p>The prayer of the Bill is, the defendants may be compelled to convey to the plaintiffs the undivided half of the tract, or such portion of it as the plaintiffs are entitled to; —</p> <p>Or that the defendants may be compelled to commence and prosecute a petition for partition of the tract, the plaintiffs offering to pay the necessary expenses of such process; —</p> <p>And also that the defendants may be compelled to account for the proportion of the rents and profits, received by them, to which the plaintiffs are entitled.</p> <p>The defendants demurred generally to the Bill.</p> <p>The demurrer confesses the facts charged in the bill.</p> <p>The defendants, then, claiming title to no more than one undivided half of the premises, occupy and take the rents and profits of the whole, and refuse to account to the complainants for any portion of the rents, or to make partition of the premises.</p> <p>The plaintiffs are the proprietors of all the premises, not the property of the defendants. No other person than the plaintiffs and defendants have any title.</p> <p>Goodhue, McLaughlin, and all claiming under them, except these parties, are each estopped to claim any portion. The title must be in some one.</p> <p>The defendants claim title to one undivided half only. The complainants are then the proprietors of the remainder.</p> <p>The defendants wrongfully withhold the complainants’ right. The Court has decided, in Soutter & al. v. Porter, that the complainants cannot maintain a petition for partition, but that, if the defendants will petition for partition, the complainants can then have their right assigned to them. The refusal of the defendants to do this, or to make partition by deed, is a wrong. It is a fraudulent holding on their part. It is against equity and good conscience, that they should thus appropriate to themselves the property of the complainants.</p> <p>The complainants have no remedy unless the Court grant it here. They cannot maintain a writ of entry. They cannot force the defendants to make partition. Will the Court declare there is no remedy ?</p> <p>It is a maxim of law that there is no wrong without a remedy. Have not the complainants been wronged ? Where is the remedy ?</p> <p>The Court may well consider the wrongful holding by the defendants of the complainants’ property a fraud, although not a technical fraud.</p> <p>There is not, and never has been, between these parties, any privity in contract or estate. There has been no occasion for a fraud, trust, accident or mistake to arise.</p> <p>The relief prayed for is beyond the powers of any Court.</p> <p>The defendants are seized as tenants in common of half of a .tract of land, and are in possession of the whole.</p> <p>Plaintiffs claim half of the land in severalty by a defective title, and pray that the defendants may be compelled; —</p> <p>1. To convey to them without consideration an undivided half, (which is all the interest which the defendants have,) or —</p> <p>2. To convey a portion in severalty, (which they have no power to do;) or —</p> <p>3. To commence and prosecute to judgment, a suit for partition, with those who are not co-tenants ; a suit unauthorized by law j a judgment which no court has power to render; and that, too, when the defendants prefer, and by law are entitled, to continue to hold the estate in common with their co-tenants ; —</p> <p>4. And to account for rents and profits with those who hare never had possession of, or title to, any part of the estate in common; or any right to occupy any part of the land against these defendants. The Bill, therefore, presents no case within the jurisdiction of the Court.</p>

<p>Tlie JR. S. chap. 114, sect. 48, authorizing a new summons to be issued and served in certain cases, does not extend to a case in which no summons had been delivered to the defendant, or left at any place or with any person for him.</p> <p>The taking of depositions in vacation by a defendant to prove the defence, pending a motion by him to dismiss the suit, is not an abandonment of the motion, or a waiver of .the ground upon which it had been presented.</p>

On Exceptions from the District Court, Hathaway, J. Writ of Entry. The record shows that the action was referred to three referees, “ the report of whom, to be made as soon as may be, judgment thereon to be final.” The award of the referees was signed by only two. They however certified, that the other was present and acted at the hearing, though he refused to join them in signing the report.

<p>On the question, Whether a mil shall be established, there is no legal presumption of the testator’s sanity.</p> <p>It is a fact to be proved.</p> <p>The subscribing -witnesses to a will, though not experts, may give opinions as to the sanity of the testator, when the facts are stated upon which their opinions are founded.</p> <p>The facts proved upon such a point are to be considered of more importance, in acting upon the appeal, than the opinions of the witnesses.</p> <p>In such a case, it is not essential to the establishment of the will, that any of the subscribing witnesses should testify to any opinion respecting the sanity of the testator.</p> <p>To the publication of a will no prescribed form of words is requisite. No other publication is necessary than that the testator, at the time of executing the instrument, was apprized of its contents, and knew and intended it to be his will.</p>

<p>In. a prosecution for the unlawful sale of spirituous or intoxicating liquors, it is the province, not of the Court, hut of the jury, to determine whether the article sold was or was not of the prohibited class.</p>

On Pacts agreed. Writ of Entry by a mortgager against a party, who, by more than six years occupation, had become entitled to bet-terments. If the action is maintainable, a person agreed upon by the parties, is to appraise the land and the improvements. To maintain a writ of entry, right of possession is essential. The right of a mortgager is only contingent, and cannot prevail against a vested interest. Twenty years adverse possession gives an indefeasible title.

<p>ON Exceptions from the District Court, Hathaway, J. presiding.</p> <p>The question was upon the liability of Nickels, the supposed trustee, to be charged.</p> <p>He disclosed that he was indebted upon an unnegotiable note for logs and other property to the late firm of Hall &, Lewis, of which Lewis, the principal defendant, is the surviving partner.</p> <p>To an interrogatory (objected to as irrelevant,) put by the defendant’s counsel to the trustee, “ whether Lewis gave him to understand that the estate could not pay the debts,” he replied; — “ I do not think he did at the time of the sale, I was loth to buy any thing but the logs, but Mr. Lewis said the effects would go to pay their debts in Boston, and probably, if I wished, I could get an extension of the time of payment.”</p> <p>It was admitted, that the note given by Mr. Nickels is in the hands of the administrator, or a person claiming to be such, of Hall, the deceased partner of Lewis, and that the administrator has notified Mr. Nickels, that he requires payment, for the benefit of the creditors of Hall & Lewis, said notice being made subsequent to the service of the trustee process.</p> <p>The Judge ruled that the trustee was not chargeable, and the plaintiff excepted.</p> <p>The case was submitted without argument, by —</p>

<p>XJpon a plea of disclaimer in a real action, if the tenant, at the commencement of the suit, -was in possession of any part of the land disclaimed, the demandant must he the prevailing party.</p> <p>Under It. S. chap. 91, § 1, the title of a grantor to land trill pass, though he may he disseized at the time of his conveyance.</p> <p>Title in a third person cannot he proved under a plea of disclaimer.</p> <p>A judgment, to -which a person -was not a party or privy, cannot he introduced as evidence against him.</p> <p>By an entry into land and a visible possession of a part of it, hy one claiming title under a registered deed, the true owner is constructively disseized of the whole tract described in the deed.</p> <p>But such constructive disseizin would not extend to any part of the land, of which some other person was, at the time, seized and possessed.</p> <p>There cannot he two distinct and independent seizins of the same land at the same time.</p>

<p>Ow Facts agreed.</p> <p>Bastardy Process.</p> <p>A verdict had been rendered for the complainant. After exceptions-had been filed and overruled, 33 Maine, 481, the respondent’s counsel suggested that the complainant had been lawfully married to another man, subsequent to those proceedings. The fact was admitted.</p> <p>The parties submit the case to the full Court for such judgment as they shall think proper.</p> <p>1. Judgment should be rendered for the complainant. The objection of coverture could only be taken by plea in abatement, as matter which arose puis derrein continuance, and should have been pleaded within the first three days. The counsel for the respondent, however, has merely suggested the coverture, and that on the ninth day of the term. He doe's not plead it.</p> <p>2. But should the objection prevail, it is agreed by the parties that the husband may be joined. If that be done, judgment may be rendered in théir favor, in accordance with the provisions of ch. 115, <§. 82, R. S., on the ground that a bastardy process is an action, or suit, within the meaning of that section, which provides that the husband may be admitted as a party to a suit commenced by the wife, dum sola. Williwms v. Campbell, 3 Mete. 209; Eaton v. Elliot, 28 Maine, 436.</p> <p>In a proceeding of this kind a husband must join. Wilbur v. Crane, 13 Pick. 284; 16 Maine, 38.</p> <p>By common law, if a femme sole, in any proceeding where a husband should join, married during its pendency, it will abate such proceeding. Haines v. Corliss, 4, Mass. 659; Swan v. Wilkinson, 14 Mass. 295.</p> <p>The R. S. chap. 115, <§, 82, provides that, “ in any action or suit,” the husband may, on motion, come in and be joined.</p> <p>But this is neither an action or suit. It is merely a complaint.</p> <p>In State v. Stuart, 23 Maine, 114, this Court has decided that an indictment cannot be included in the term, “ suits at law.” If then an indictment is not a suit at law, neither can a complaint be one.</p> <p>In State v. Bangor, 30 Maine, 341, there was a remedy for the heirs of an individual by form of indictment, although in reality and effect a civil proceeding ; a remedy for persons, not for the State. It was under § 89, chap. 25 of the R. S. The Court in that case decided it to be so much of a crimi--nal proceeding that sects. 15 and 16, of chap. 146, which limited forfeitures to persons, would not apply. But the statute in that case was in all respects as much for the benefit of an individual as the chapter upon which this proceeding is founded.</p> <p>In § 1, chap. 133, R. S., relating to testimony and depositions, it is stated, that depositions may be used in all civil causes and also in prosecutions for the maintenance of bastard children. This shows the legislative impression. True, there are incidents to this process of a civil nature, but the same are all specially given. The proceeding is, after all, a criminal one; is founded on a criminal act; has all the form of criminal proceeding, only different where the civil can add to, instead of take from, its rigor of execution.</p> <p>In Cummings v. Hodgdon, 13 Mete. 246, there is a late, full review of all the cases, wherein it is decided, that such a proceeding has day in a criminal term and not in a Court of merely civil jurisdiction.</p> <p>It may present an anomaly, that a husband must join and cannot join. But all special remedy, not in accordance with the great current of the common law, will present imperfec-' tion and difficulties. When the statute gives a new proceeding, it is apt to make imperfect provision for the unforeseen positions which may arise.</p>

<p>ON Exceptions from Nisi Prius, Howard J. presiding.</p> <p>Assumpsit, on a book account for $164,74. — See 32 Maine, 253. The plaintiffs reside in New York. The defendant read a receipt signed by them as follows: — “New York, 4 Feb’y, 1848. Received of A. S. Herman, eighty dollars, which is in full for our demand against J. Oppenheimer of Maine, for $154,74, and we agree to discharge said Oppenheimer therefrom, upon payment of the costs incurred therein.” When this receipt was given, an action upon the demand had been commenced; the writ had been served, blit the return day for entering it in Court had not arrived.</p> <p>The plaintiffs contended that the receipt had been fraudulently obtained by the false representations of Herman, as to the solvency of the defendant, and also that the costs had not been paid, according to the condition therefor, mentioned in the receipt.</p> <p>The officer, to whom the writ had been delivered for service, testified that he called upon the defendant, who admitted his indebtedness upon the account, but said some discount was to be made, and desired a delay that he might employ a friend in New York to procure a settlement; that soon after-wards, he called again at the house of the defendant, who was not then at home; that the'defendant’s wife then exhibited to him the receipt; that some time afterwards the defendant paid to the witness $2 for his fees and $3 for the writ; that, as he thought, he credited the plaintiffs’ attorney $3, on account, for the writ ? that he notified him, before entry of the action, that the $>5 had been paid ; that the attorney made no objection, and had never called for the money, and the witness has never paid it, but holds it in readiness. The defendant then inquired of the witness what had been the practice and course of business between him and the plaintiffs’ attorney, in cases like this. The plaintiffs objected, but the inquiry was permitted in relation to transactions prior to the receiving "of the $5. The witness stated that, since the time of receiving the $5, he had, without specific instructions, collected costs on writs for the attorney, who had received the same without objection, and thought he had done so before that time.</p> <p>Upon this point, the plaintiffs requested instruction to the jury “ that, to authorize the officer to receive the costs, so as to affect their rights, an express authorization was necessary from them or some person duly authorized to give it in their behalf.” That instruction was not given.</p> <p>The plaintiffs offered to prove that, at “the time of making the receipt, Herman made certain representations to them respecting the pecuniary ability of the defendant, and that'those representations were false. This evidence was objected to and ruled to be inadmissible, “ unless it could be shown that Herman made the representations, as agent of the defendant, or by his authority.”</p> <p>The Court instructed the jury that the receipt introduced by the defendant, with evidence of the payment of cost to the plaintiffs, or some person duly authorized to receive it, constituted a bar to this action; that the parties to whom the costs were due, were authorized to receive it; that the payment of the $3 to the officer was not a sufficient compliance with the terms of the paper,’ unless he had authority, either express or implied, from the plaintiffs’ attorney, or there had been some subsequent ratification of the acts of the officer, by the attorney, and left it to the jury on the evidence to say whether or not there was such authority or ratification.</p> <p>The verdict was for the defendant, and the plaintiffs excepted.</p> <p>If the act of Herman, in procuring the receipt, was unauthorized by the defendant, it cannot now be made available in defence, as it contemplates an act agreed to be done by the plaintiffs, to wit, the discharge of the debt on the payment of the costs, which not being binding at its inception, for want of mutuality, cannot become binding except by a consent of the parties ; to wit, a new agreement. Quod ab initio non valet, tractu tenvporis non convalescit. Story’s Agency, sec. 246 ; Right d. Fisher & al. v. Cuthill, 5 East, 498, 499, 500; 1 Story’s Equity Juris. <$> 307.</p> <p>If the case comes within the principle above alluded to, then the instruction of the Court “ that the paper introduced by the defendant, with evidence of payment of costs,” &c. constituted “ a bar to this suit,” is erroneous.</p> <p>If Herman’s act was authorized, then he was the defendant’s agent, and the instruction excluding his declarations was erroneous. For the instruction assumed that no agency was proved.</p> <p>The evidence sufficiently shows, that Herman was the agent of the defendant.</p> <p>1. One mode of proving an agency is by the acts of the parties. Story on Agency, §> 47; 2 Greenl. Ev. § 61.</p> <p>2. Agency may be proved by implication, from the conduct and acquiescence of the principal. Story on Agency, $ 45, 46, 47, 54, 55 ; 2 Kent’s Com. 613, 614, et seq.</p> <p>3. Agency may be proved by subsequent ratification. 2 Greenl. Ev. § 60 : Story on Agency, § 45 et seq.</p> <p>From the facts proved, the agency of Herman might fairly be inferred, and therefore the requirement of the Court, that we must go further, and prove agency more distinctly, was unauthorized. Here we have acts of the parties, the conduct, recognition and acquiescence and ratification of the principal. Had the case been left to the jury on this evidence, could the Court have set the verdict aside as against evidence if they had found the agency ? Was there not evidence here, which should have been- left to the jury ?</p> <p>The second branch of the ruling, excluding the testimony, is more objectionable still, if possible, vix: — That we must prove an authority in Herman to make the representations, in order to make them admissible.</p> <p>We had, as we supposed, laid the foundation for the introduction of Herman’s declarations, by sufficient proof of his agency. Whether we had so done, was a question for the jury, which the Judge assumed to decide.</p> <p>If the jury had found the agency, we might 'have shown such fraud, practiced upon the plaintiffs in procuring the receipt, as would have rendered it ineffectual for the defendants.</p> <p>The instruction, as to the payment of the costs, is objectionable : —</p> <p>1. Because it assumes, that the payment, if made, was within reasonable time.</p> <p>2. The witness testified to his thoughts upon the matter. The testimony was objected to, but went to the jury.</p> <p>3. The testimony, as to the practice which had obtained between the officer and the attorney, was inadmissible unless amounting to a custom of trade or of a profession, which in this case is not pretended. The rights of parties are to be governed by law, not by any remissness in the attorney’s mode of business.</p> <p>The requested instruction should have been given. An officer being a legal minister, his acts are supposed to be done as official duties, not under any implied arrangements between himself and the attorney. The proof, therefore, in order to justify his acts, must show that he had an express authorization.</p> <p>The instruction as to authorization and ratification of the officer’s doing was calculated to mislead. It was uncalled for, since there were no facts from which an authorization or a ratification, either express or implied, could be found.</p>

On Facts agreed. Writ of Entry. The tenant purchased a farm of Clark Osgood, and gave him therefor a note for six tons of hay, yearly, for ten years, to be delivered at Osgood’s barn, of the average quality cut on the farm, and valued at twelve dollars per ton. At the same time he gave Osgood a mortgage of the farm, conditioned for the delivery, at Osgood’s barn, of six tons of hay, yearly, for ten years. The mortgage contained no reference to the note.

On Facts agreed. Trespass against the sheriff for taking the plaintiff’s hay. The plaintiff let a farm and stock of cattle to one Webber.

<p>On Exceptions from the District Court, Rice J.</p> <p>Debt on Judgment.</p> <p>The defendant pleaded nul tiel record, with a brief statement of his discharge in bankruptcy. The plaintiff filed a counter brief statement. The defendant’s brief statement was objected to, and was amended. In the amended form, as the case shows, it “ sets forth more particularly all the proceedings on the defendant’s petition for the benefit of the bankrupt act, alleging that the debt sued for was due prior to the filing of said petition on April 2, 1842, and stating, among other things, that it was proveable in bankruptcy, that it was not created by default in any office, nor incurred in any fiduciary capacity, and that, at the time of the filing his said petition and of the said decree of discharge, he resided in said Maine District.</p> <p>Under this brief statement, the defendant offered in evidence his bankruptcy discharge, which was in the usual form. The plaintiff objected to its introduction, and the Judge sustained the objection, and ruled, that the discharge was inadmissible, until the defendant should show, that it was duly granted by producing a copy of the record of the petitions, papers and proceedings in the bankruptcy court.</p> <p>The verdict was for the plaintiff, and the defendant excepted.</p> <p>After the exceptions were entered, the plaintiff in this Court, filed a motion, setting forth, that upon the writ in this suit, an attachment of the defendant’s land was made prior to his petition in bankruptcy ; that such attachment constituted a lien or security upon the land, which was not defeated or impaired by the bankrupt law; and, therefore praying the Court to adjudicate upon the plea of nul tiel record, and, if judgment should be thereon rendered for the plaintiff, to order a special execution running against the land attached. And, in support of the motion, the plaintiff offered the appropriate proof that such attachment had been made.</p>

On Exceptions from the District Court, Rice, J. Complaint under the R. S. chap. 131, for the maintenance of bastard children. The complainant was offered, by her counsel, as a witness to prove the accusation she had made before the magistrate, charging the respondent as the father of her child. She was objected to on the alleged ground, that she had been inconstant in the accusation. There was much testimony offered to the Court, upon that question.

<p>On Exceptions from Nisi Prius, Shepley, C. J. presiding.</p>

<p>A declaration charging a trespass upon the plaintiff’s close is had, on general demmrer, if it do not describe the close or allege the venue.</p> <p>To the decisions of a Judge, in matters of discretion, exceptions do not lie.</p>

The executor of Johu Lowell, in 1849, presented an administration account in the Probate office, and the Judge of Probate decreed its allowance, and thereupon granted a license to sell real estate for the payment of debts. Under that license, the executor conveyed land, in which the petitioner claims an interest, derived under one of the heirs of said John Lowell.

On Exceptions from Nisi Prius, Howard J. presiding. The question is upon the liability of Owen to be adjudged trustee. From his disclosure and from a deposition given by the principal defendant, the following appear to be the material facts: — The defendant mortgaged a stock of goods to Joseph Sewall, reserving the right to continue in possession for a limited period.

On Report from Nisi Prius, Shepley, C. J. presiding. Assumpsit. The defendants and one Todd agreed with each other in writing that they would build A ship, Todd to build and own two quarters, and the defendants the other two. Todd was to make the necessary purchases and superintend the building, for which he was to be allowed $400.

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

<p>A conveyance of chattels, if unconditional in its form, need not be recorded, although intended merely for security, and although the chattels are permitted to remain in possession of the vendor, and the debt thereby secured is of more than thirty_dollars.</p> <p>Whether the adoption of that form, would be indicative of a fraudulent intent, as against creditors of the vendor, would be for the consideration of the jury.</p> <p>A deposition is not to be rejected, merely because its caption omits to state at whose request it was taken.</p> <p>The caption of a deposition sufficiently states the cause in which it is to be used, if it name the parties and the Court in which the trial is to be had.</p>

<p>On Exceptions from the District Court, Rice, J. presiding.</p> <p>Indictment of five counts. It charged substantially a conspiracy to prevent by force the execution of a legal warrant, which it recites at full length.</p> <p>The warrant had upon it a small piece of paper annexed by a wafer, and was directed to the sheriff or his deputy or the constable of Frankfort. So far as material here, it was as "follows: —</p> <p>“ Whereas, (naming six persons,) all being voters in said town of Frankfort, on oath complained to me, that they had reason to believe and did believe that Captain Sanford of the steamer Boston, against the peace, and contrary to the form of the statute in such case made and provided, then had and kept spirituous and intoxicating liquors intended for sale, deposited in said steamer Boston, situated in Frankfort aforesaid, occupied by him, said Sanford, said Sanford not being appointed as agent thereof to sell therein spirits, wines or other intoxicating liquors, whereby said liquors may have become forfeited to be destroyed, and that said Sanfot'd has forfeited, &c., and prayed that due process might issue to search there for the same.</p> <p>“ Therefore in the name of the State of Maine you are required to enter the steamer Boston and search there for the same, and if such liquors be found therein to seize and safely to keep the same in some proper place of security until final action and decision be had on said complaint, and that you summon said Sanford forthwith to appear at a Court to be holden at my office in Frankfort, at such time as you may appoint, to show cause if any he have, &c.</p> <p>“ Archibald Jones, Justice of the Peace.”</p> <p>The government offered evidence tending to prove that Miles Staples, being a deputy of the sheriff of the county of Waldo, and having in his possession for service the paper purporting to be a warrant, set forth in the indictment, went on board the steamer Boston, then lying at Frankfort in said county, of which steamer McNally was mate, and Taylor agent, and claimed a right, by virtue of said paper, to search for spirituous and intoxicating liquors, as there directed, and was permitted by Taylor and McNally so to do.</p> <p>That Staples proceeded to search for liquors on the main deck of the steamer, and found there some ten or twelve casks of spirituous liquors, which he marked with chalk with the word “ seized.” That he afterwards ordered Mc-Nally and Taylor, after he had read his precept in their hearing, to assist him in removing said casks from the steamer, that they refused, and ordered him to leave the boat. That Staples then called to others to come on board and aid him in removing the casks, and immediately a forcible resistance was begun by McNally and Taylor and the crew of the steamer, and Staples and another acting under him, were assaulted and beaten, and were prevented from removing the casks. There was other evidence, tending to prove the conspiracy as against these two defendants.</p> <p>The government also called as a witness, for the purpose of proving the alleged conspiracy, one John Adams, who testified that he, acting as a constable of Frankfort, and having in his possession a warrant, about three hours after the arrival of the steamer at Frankfort, went on board of her and by virtue of said warrant made search for intoxicating liquors on the main deck, and there found several casks which he seized as containing such liquors, that he was prevented from removing them by the threats of Taylor and the hostile attitude of McNally and the crew.</p> <p>The defendants objected to Adams being allowed to testify to his acts as a constable, until it was proved by competent evidence that he was legally authorized as such. They objected also to the competency of Adams as a witness to prove his own authority, there being no other evidence upon that point. But the Court overruled the objection.</p> <p>The only evidence offered to show that Jones, when he signed said paper, had legal authority so to do, was the testimony of Jones that he acted as a justice of the peace, and was such. The defendants objected to the admissibility and to the competency of that testimony, but the Court overruled the objection.</p> <p>The defendants introduced evidence, tending to show that said casks, which Adams and Staples attempted to remove, were brought from Boston on freight in said steamer on her last trip, and had not been landed; and Staples on cross-examination testified that he so understood it, and offered to pay the freight at the time he attempted to remove them.</p> <p>The defendants also proposed to inquire of Wm. L. Chase, a witness produced by government and one of the complainants in the complaint, “ what reason he had for believing at the time he made the complaint, that the charges therein were true.” — The County Attorney objected to the inquiry and the Court ruled that the witness was not bound to answer, but might if he chose, or he might decline if he chose, and the witness refused to answer.</p> <p>The same interrogatories were put to R. B. Curtis, another of the complainants, who was also a witness for the government, who said he had no objection to answer, but the County Attorney objected, and the Court excluded the evidence.</p> <p>The defendants’ counsel then asked the witness whether the complaint was not made with reference to, and for the purpose of seizing liquors, which had been put on board the steamer at Boston, and brought on freight ? The County Attorney objected, and the Court ruled that he might answer or decline as he chose, and the witness declined to answer.</p> <p>It appears that the steamer was a regular licensed coaster plying between Boston and Bangor; and that she arrived at Frankfort on her way to Bangor, and was prevented by the ice from proceeding to Bangor, and the captain was intending to return to Boston on the next day.</p> <p>It was contended on behalf of the defendants that the acts, which they were charged with conspiring to do, were not illegal, but were a lawful and necessary defence of property, committed to their charge as common carriers, and that proceedings for the purpose of seizing the liquors, were unauthorized by law, and that the attempt to remove the same was illegal, because: —</p> <p>1. So much of the Act of 1851, entitled “ An Act for the suppression of drinking houses and tippling shops,” as is relied on as authority for any of the said proceedings, is unconstitutional and void.</p> <p>2. And, if constitutional, said Act does not authorize the proceedings set forth in the indictment, nor the proceedings of Staples on board the steamer.</p> <p>3. The Act did not authorize the seizure of liquors in transitu or on freight.</p> <p>4. The Act does not .empower a deputy sheriff to serve warrants for the search and seizure of liquors.</p> <p>5. The warrant set forth did not command or authorize any one to search for or seize on board the steamer any liquors, which were there on freight.</p> <p>6. The warrant- was not in accordance with the requirement of the Act nor according to law.</p> <p>7. The warrant was illegal and void, in that it commanded the officer to appoint such time as he might choose for a hearing upon the complaint.</p> <p>8. The warrant was not, and did not purport to be, under the seal of said Jones.</p> <p>The defendants requested the Court to instruct the jury that for each of the said eight reasons, the attempt to remove the liquor from the steamer was illegal; and that, therefore, the indictment could not be maintained. The Court declined to give the instructions as requested, but instructed the jury that, if any of the defendants entered into a conspiracy together, or with other persons, not named in the indictment, to resist Staples in the execution of the warrant, they were to be found guilty.</p> <p>The jury returned a verdict against McNally and Taylor, and they excepted.</p> <p>The eleventh section of the Act of 1851, “ for the suppression of drinking houses and tippling shops,” is unconstitutional.</p> <p>It makes the issuing of search warrants a ministerial, instead of a judicial act; and permits them to be issued without probable cause, in violation of Article 1, <§> 5, of the Bill of Rights.</p> <p>At common law, “ search warrants are judicial acts, and must be granted upon examination of the facts.” 4 Burns’ Just. 104, Search-warrant; 4 Burns’ Just. 329, Warrant; Chitty’s Criminal Law, [*65.]</p> <p>The constitution, in the article referred to, recognizes and confirms this view, when it requires the existence of probable cause, as a condition precedent to the issuing of them. Probable cause is a judicial inference from certain facts legally proved. Whether it exists, is a matter of judicial inquiry. 2 Greenb Ev. § 454; Chitty’s Crim. Law, [*33; ] Rex v. Baker, Strange, 316.</p> <p>This statute requires the magistrate to issue his warrant without making such inquiry. Its language is imperative, — “ shall issue” on complaint of three voters, &c. By the constitution and by the common law, a search warrant must be founded on the judgment of a magistrate. By this Act,' it is founded on the opinion of the prosecutors, without, and, it may be, even in opposition to, the judgment of the magistrate who issues it.</p> <p>It authorizes the issuing of warrants to seize, without special designation of the thing to be seized. Sanford v. Nichols, 13 Mass. 287.</p> <p>It requires a seizure and removal of liquors, lawfully kept for lawful purposes, and against which there is no complaint, if they happen to be found in the same building with suspected liquors; of liquors belonging to one man, on complaint against liquors belonging to another; an unreasonable seizure.</p> <p>It requires the seizure and removal of liquors which are not liable to forfeiture, even when kept with intent to sell; of liquors of foreign manufacture, in the original packages in which they were lawfully imported, which are expressly excepted by the Act itself from forfeiture or destruction; an unnecessary, useless and vexatious seizure.</p> <p>In violation of the first clause of the constitution, it authorizes the taking of property from the possession of the owner, by the officers of the law, under the color of process, and then declares it (section 16,) to be out of the protection of the law; forbids redress for its conversion or wanton destruction ; and makes no provision for its restoration, even if the owner shall be adjudged entitled to it.</p> <p>It authorizes the seizure, condemnation and destruction of property by a judgment of Court, without notice to the owner. It imposes upon the ministerial officer, to whom the warrant is committed for service, the judicial duty of inquiring and deciding who is the owner of the property seized ; and if such officer decides wrongly and summons the wrong party, and the liquor, in consequence thereof, shall be condemned in default, the owner is without remedy.</p> <p>It authorizes a conviction and punishment upon a criminal prosecution, without any trial, or even notice to the party to be affected, and without accusation. Whether liquors are liable to destruction under this Act, depends, not on the character or description of the liquors, nor on the place or the manner, in which they are kept, nor on any thing that has previously been done with them, but solely on the intent with which the owner keeps them. Their forfeiture is part of the penalty .which the law imposes upon the criminal intent of the owner. Before he can be convicted of such intent, he has a right to a trial; before he can be punished, he must, at least, be accused.</p> <p>This whole provision for the seizure is senseless. If the owner appears, no judgment of condemnation can be rendered of any liquors over five gallons in quantity, without his consent; for the Act provides (section 13,) that on conviction by the jury, after an appeal, the appellant shall be adjudged a common seller and be subject to punishment as such. Such judgment cannot be rendered, for it imposes a penalty upon the exercise of the constitutional right of appeal to a jury. No other judgment can be rendered, for the offence, process and proceedings are alike unknown to the common law; and the Act gives the Court no power to affirm the judgment of the justice.</p> <p>Further, any one, not the owner or keeper of the liquors, may defeat the whole proceedings. He has but to appear, claim the liquor, appeal, and, as no conviction of keeping with guilty intent can be had against him, the whole proceedings must fail.</p> <p>It subjects a citizen to the hazard, cost and disgrace of a criminal prosecution, and deprives him of the possession of his property, upon the suspicion of unofficial and irresponsible persons, without the sanction of any officer of the law, or any legal investigation ,• all which is at war with the spirit of the constitution, subversive of well settled principles of the common law, and in derogation of common right.</p> <p>The Act does not empower a deputy sheriff to serve warrants to search for, and seize liquors. That officer is not mentioned in section 11; and neither sheriff or deputy sheriff are mentioned in section 14. Wood v. Ross, 11 Mass. 277 ; See Mass. Law, Act of May 18, 1852, <§> 14.</p> <p>The fact that the warrant is directed to such an officer gives him no authority to serve it. Reynolds v. Orvis, 7 Cow. 269; Grant v. Bagge, 3 East, 128 ; Commonwealth v. Foster, 1 Mass. 488.</p> <p>The warrant is no justification to the officer, if the magistrate in issuing it, exceeds his jurisdiction, as to the place to be searched, or as to the process. Sanford v. Nichols, 13 Mass. 288-9; 1 Conn. 40; 5 Wend. 181; Com. Dig. Imprisonment, H. 9; Wise v. Withers, 3 Cranch, 331. .</p> <p>A steamboat is not “ a place,” or “ building,” liable to be searched, within the meaning of the statute. Verba generalia, &c., Bac. Max. Reg. 10.</p> <p>A sweeping clause in a deed, refers to things of the same nature and description, &c. Lord Mansfield, in Moore v. Magrath, Cowp. 12.</p> <p>Under 29 Car. II. c. 7, which enacts, that “ no tradesman, artificer, workman, laborer, or other person whatsoever, shall do any work on Lord’s day,” it is held that a farmer is not a “person” within the meaning of the statute, not being a person ejusdem generis with those named. Rex v. Whitnash, 1 M. & R. 452; S. C. 7 B. & C. 596; and so an attorney, Peale v. Dicícen, 1C. M. & R. 422; 5 Tyrrwh, 116 ; so as to stage coach owner, Sardeman v. Breach, 7 B. & C. 96 ; S. P. in Clark v. Gaskarth, 3 Taunt. 431; Smith on Contracts, 86, [*171.] See 1 Hawk. P. C. chap. 38, § 17, and 1 Hale’s P. C. 557.</p> <p>“Building” does not include vessel, in the ordinary meaning of the term; nor is it intended to include it in the statutes. See R. S. chap. 155, <§> 5 and 11; Chap. 156, § 2 and 3; Commonwealth v. McMonagle, 1 Mass. 517; Stat. 1784, chap. 66 ; Mass. Law, Act of May 18, 1852, *§> 14.</p> <p>Sales on board vessels are not the mischiefs to be remedied by this section of the statute. The object was to give towns power to break up, in a summary manner, all drinking establishments, intended to be permanent, within their limits.</p> <p>Liquors in transitu are not liable to seizure. Process issues only at the instance of three voters of some town or city, against liquors, kept in some building or place in such town, and intended for sale in that building or place.</p> <p>The liquors found by Staples, on board the steamer, were in transitu, known to be so by him. He was ordered, by his warrant, to seize only liquors kept for sale on board the. Boston and in Frankfort. His attempt at removal was, therefore, a trespass, the resistance to which, on the part of defendants, was a lawful act.</p> <p>This complaint, if made for the purpose of seizing said liquors in transitu, was a fraud upon the law, and the complainants are trespassers; and the warrant would furnish no protection to the officer, if he knew the design and aided in the execution of it. The examination of such of the complainants as \frere witnesses, upon that point, should have been admitted. The witnesses should have been compelled to answer.</p> <p>The process in this case exceeded the jurisdiction of the magistrate, and was not in accordance with the statute. It requires the officer to summon the keeper to appear, and to make return of the warrant, at a court to be holden at such time as he, the officer, might appoint. By the Act, the hearing must be had forthwith; and by the constitution, an accused party is entitled to a speedy trial. Pearce v. Atwood, 13 Mass. 348-9.</p> <p>There is no sufficient evidence that Jones was a magistrate.</p> <p>A seal is an essential part of a warrant. 4 Bl. Com. 291; 2 Hawk. P. C. 136, c. 13, s. 21; Com. Dig. “Imprisonment,” H. 7; 9 N. H. 240.</p> <p>There was no evidence, either in the warrant itself, or aliunde, that the bit of wafer attached to the warrant in this case was the seal of the magistrate, or was ever adopted by him.</p> <p>It is only the seals of States, or of higher law tribunals, which are recognized by courts. Other seals must be proved. 3 East, 221; 3 Johns. 310; Tebbetts v. Shaw, 1 App. 208-9,</p> <p>The testimony of Adams was improperly admitted, there being no sufficient proof that he was a constable, or had any warrant authorizing him to search or seize.</p>

<p>Indictment founded upon R. S. chap. 157, <§> 5. It was found in the District Court and, for a supposed want of jurisdiction in that Court, was transferred to this Court for trial. It charges that on the fifteenth day of April, the said Bonney had in his custody and possession ten false, forged and counterfeit bank bills, in the similitude of, and purporting to be ten bills payable to the bearers thereof, and purporting to have been signed in behalf of, and issued by the president, directors and company of the Mahaiwe Bank, for the sum of three dollars each, the same being a corporation by law established as a bank within the Commonwealth of Massachusetts, which said ten false, forged and counterfeit bank bills, were then and there retained and kept in the possession of the said Bonney, so that the jurors aforesaid cannot set forth the tenor thereof; and, that he did then and there have in his custody and possession as aforesaid, each of the false, forged and counterfeit bank bills as aforesaid, with intent to utter and pass the same, and thereby to injure and defraud the said president, directors and company; against the peace of such State and contrary to the form of the statute in such case made and provided.</p> <p>A waiver of objections to any irregularity in the finding of the indictment and to the jurisdiction, was entered of record by the defendant.</p> <p>After verdict against the defendant he moved an arrest of judgment. — “ Because the indictment no where avers, that the defendant had the ten bills, alleged to be counterfeit, at one and the same time,” and because this Court has no jurisdiction of the case.</p>

<p>On Exceptions from Nisi Prius, Wells, J. presiding.</p> <p>Assumpsit, by William Stevens, as surviving partner of the firm of Hiram & William Stevens.</p> <p>The firm owned one quarter of a schooner. They aver that they paid a bill for materials used in repairing her, and this suit is brought to recover for one half of that payment, on the ground that the defendant’s intestate owned one half of the vessel.</p> <p>Several defences were set up and there was much testimony. Some of it tended to prove that the payment was made by the hand of William Stevens.</p> <p>The Judge instructed the jury, that if, at the time when the bill accrued, the defendant’s intestate owned any part of the vessel, and Hiram and William Stevens also owned a part; and if William Stevens, the plaintiff, had paid the bill, the plaintiff was entitled to recover the proportion thereof, of which the intestate was the owner, it having appeared that the intestate requested the materials to be furnished for the schooner. The defendant excepted.</p>

On Facts agreed. Assumpsit against the indorser of a negotiable note, dated April 3, 1848, payable in two years. This note, and another of the same date and amount, payable at one year, together with fifty dollars in cash, were given to the defendant by one Merrow for a shop, being personal property, sold by the defendant to Merrow. At the same time, Merrow gave to the defendant a mortgage of the shop to secure the notes. On April 6th, 1850, the shop was consumed by fire.

On Exceptions from the District Court, Rice, J. Covenant broken, brought upon an obligation to deliver certain articles of produce to the plaintiff annually.

On Facts agreed. Debt upon a poor debtor’s relief bond. The defendants offered a discharge of the debtor, issued in due form of law by two justices of the peace and quorum, upon the taking by him of the poor debtor’s oath. The plaintiff objected to its introduction, until the record of the organization of the justice’s court should be produced, showing that they had been rightfully selected.

<p>On Report from the District Court, Rice, J.</p>

On Report from Nisi Prius, Tenney, J. Trespass against the sheriff for taking and selling on execution two colts, alleged to be the property of the plaintiff. They had been previously attached on the writ. That attachment had been continued in force, and the sale was made in virtue of it. The case was submitted to the Court for a legal decision, with authority to draw inferences as a jury might do.

On Exceptions from the District Court, Rice, J. Indictment for a riot.

<p>To the success of a complaint under the Bastardy-Act, it is indispensable that the complainant be admitted and testify, as a witness.</p>

On Exceptions from the District Court, Emery, J. Debt, for that the defendant on the 30th day of December, 1849, sold a quantity of spirituous and intoxicating liquor to John Morrell, viz : — one glass of rum; viz : — one glass of gin, not having been licensed, &c. The defendant urged in defence that the Act, upon which the suit was brought, was not in force, but had been repealed. The Judge however ruled otherwise.

On Exceptions from the District Court, Emery, J. Indictment for obstructing “ a common and public highway for all the citizens of the State to travel upon at their will and pleasure.” To establish the existence of the highway, the government introduced evidence tending to prove that for more than thirty years it had been used as a highway.

<p>An article of the Constitution provides, that “ private property shall not he taken for public use, without just compensation.”</p> <p>By the taking of property, within the scope of that provision, is meant such an appropriation of it as deprives the owner of his title or of a part of his title.</p> <p>That provision, when applied to real estate, precludes the acquisition of any title or easement or permanent appropriation without the actual payment or tender of a just compensation.</p> <p>It did not dislodge the paramount dominion, which the sovereignty has over the property-rights of each individual. It merely relaxed that dominion so far as to provide that property, taken iy the exercise of that dominion, should he paid for.</p> <p>It does not preclude the Legislature from authorizing acts, for the public benefit, though operating injuriously, and without compensation, upon private property, unless such property is taken and appropriated, or is attempted to be taken and appropriated from the owner.</p> <p>It does not preclude the Legislature from authorizing an exclusive occupation, temporarily, of real estate, belonging to an individual, without previous compensation, as a proceeding incipient to the acquisition of a title or of an easement, for public use.</p> <p>The right to such temporary occupation, as an incipient proceeding, will become extinct by an unreasonable delay to make actual payment or tender of compensation, and to complete the proceedings requisite for acquiring the intended title or easement.</p> <p>An action of trespass, yuare clausum, may be maintained to recover damages for the continuance of such occupation, unless within a reasonable time after its commencement, compensation be made or tendered.</p> <p>Under such circumstances, an action of' trespass or an action on the case, may be maintained to recover damages for all the injuries, occasioned by the prior occupation.</p> <p>It is requisite that enactments, in order to justify the taking of private property for public use, should designate the means to be pursued for obtaining the compensation.</p> <p>It seems, that the distinction, which asserts that private property may. be taken for public use, without previous compensation, when the payment is charged upon a public corporation, and that it may not be so taken, when the charge is attached to a mere private corporation, is untenable.</p> <p>By the charter of the Buckfield Branch Bail Boad Company, it was not the intention to require the compensation of land-owners to be paid, before a right should vest in the corporation to take exclusive occupation of land, for the purpose of making the road.</p>

<p>A town is not responsible for the failure of title to land sold and conveyed by their collector for town taxes. e</p> <p>Taxes upon the land, having been once paid by the money received upon such a sale, cannot be re-assessed, although, through deficiency in the proceedings, either of the assessors or of the collector, the title of the owner was not impaired by the sale.</p> <p>The risk of title in such sales is upon the collector and the purchaser.</p> <p>It is upon the purchaser, except so far as he may be protected by covenants of the collector.</p> <p>Tor the breach of such covenants, there is no recourse to the town. The remedy is only upon the collector personally.</p> <p>Where a judgment against a town was satisfied by the collector, out of money received by him upon a sale of land for taxes, and the purchaser failed to get title, through want of authority in the collector to make the sale, such failure confers no right to revive the judgment.</p>

<p>A bill for tbe redemption of mortgaged land, may be maintained -without a previous payment or tender, if the mortgagee or person claiming under him, shall have neglected on request to render, before the commencement of the suit, a true account of the sum due and secured by the mortgage.</p> <p>After such request, the mortgagee is to be the moving party, not only in making up the account, but also in rendering it to the mortgager.</p> <p>For the making up and rendering such an account, a reasonable time is allowed to the mortgagee.</p> <p>Though the mortgager in demanding the account, may have prescribed a time unreasonably short, in which it should be rendered, that will not excuse the mortgagee for a neglect to do it within a reasonable time.</p> <p>In adjudging upon the question of cost, the conduct of the parties toward each other, in relation to the whole subject, may be taken into consideration.</p>

On Report from Nisi Prius, Tenney, J. presiding. Trover for 6000 mill logs. The defendants pleaded the general issue severally. Evidence both documentary and oral was introduced by the respective parties, though much of it was objected to. The case was then withdrawn from the jury and submitted to the Court to be decided upon such of the evidence as was legally admissible, with power to draw inferences of fact as a jury might do.

<p>On Facts agreed.</p> <p>Trover. —The plaintiff owned a tract of timber land. He contracted with J. H. Haynes & Co. to cut and haul masts to the river and drive them to the town of Brewer. They performed the contract, and he paid them in full.</p> <p>They employed Samuel Nash, Royal F. Nash and James Nash, as laborers in the cutting and hauling. These laborers brought their several suits against Haynes & Co., and attached the masts, claiming the statute lien. Masts enough to pay their claims were sold by the officer upon the writs. Afterwards judgments in the suits were duly recovered by the laborers, and the executions were within thirty days after-wards, placed in the hands of the defendant, who is the officer, (a deputy sheriff, ) by whom the attachment and sales were made. It is for making those attachments and sales, that this action is brought against him by the general owner.</p> <p>In the suit by Samuel Nash, he charged and recovered judgment for his personal labor and also for the labor of eight oxen, $112,46, and for one ox-sled, to haul supplies, $5.</p> <p>In the suit by Royal F. Nash, he charged and recovered judgment for his personal services, and also for $2, “ being the amount agreed upon on an exchange of watches.”</p> <p>In the suit by James Nash, he charged and recovered judgment for his personal services and for five days detention in the woods at their request.</p> <p>Haynes & Co. had several teams hauling the masts. These teams, with the crews attached to them, worked separately on several parts of the tract. The defendant was unable to prove that any one of the laborers worked upon the identical masts which were attached in his suit, or that any one of such masts was cut and hauled by the crew and team with which he worked.</p>

On Exceptions from Nisi Prius, Tenney, J. presiding. Assumpsit for a quantity of saw logs. The plaintiffs having drawn the logs to the landing on the bank of thé river in the forest, sold and delivered them there, to be driven down the river by the defendants. By a scale made when the logs lay upon the bank, there was one lot. 1515 in number, amounting to 528,100 feet, and another lot amounting to 23,000 feet, the number not being recollected.

<p>On Exceptions from the District Court, Hathaway, J.</p> <p>Indictment for the common selling of intoxicating liquors in the city of Bangor. The penalty for such an offence is, by the statute, appropriated to the town or city within which it was committed.</p> <p>The government offered as a witness one of the inhabitants of Bangor. For that reason, he was objected to. He was, however, admitted.</p> <p>The government offered no evidence, that the defendant had not been licensed to sell. The Judge ruled such evidence to be unnecessary.</p> <p>The defendant proved, that for the time alleged in the indictment, he held a license as an innholder and victualer. The Judge ruled that this furnished no defence.</p> <p>The verdict was against the defendant, and he excepted.</p> <p>1. The witness was inadmissible, by reason of his interest, being an inhabitant of Bangor. At the common law that interest would clearly disqualify. The statute, chap. 115, <§> 75, has changed the rule only so far as relates to “ suits at law.” But an indictment is not a “ suit at law.” To describe an indictment as a suit at law, or to describe a suit at law as an indictment, is a violation of language. State v. Bishop, 15 Maine, 122; Commonwealth v. Odlin, 23 Pick. 275.</p> <p>2. Every thing is to be presumed in favor of innocence, not inconsistent with the facts proved. To test the ruling, we may suppose the liquor to have been imported; or that it was on hand prior to the passage of the' prohibitory Act; or that the defendant sold merely to his boarders. The prohibition of such sales was not the intention of the statute. Again, the defendant was a licensed innholder and victualer, and as such, had authority for selling to his guests and boarders. State v. Burr, 1 Fairf. 438. All the laws of 1821, pertaining to innholders, upon which that decision was made are yet in force. They were reenacted in the R. S. chap. 36, and were not repealed by either the Act of 1846, or that of 1851, not being inconsistent with them.</p> <p>3. The allegation of the indictment is, that the defendant had no authority to sell. This allegation has not been proved. Persons authorized to sell under the Act of 1851, were those who had been appointed as agents. A mere certificate of the appointment, given by the clerk of the city, is not the best evidence. The record is the only allowable evidence. When a seller was authorized under the former law, a license was handed to him, which of itself was the highest evidence, whether the clerk had or had not made a record of it. The decisions, therefore, that a defendant, who relied upon a license, was bound to show it, are not now applicable. The government, then, having failed to show by the record, that the defendant had not been appointed an agent to sell, the prosecution must fail.</p> <p>The case was submitted for the State without argument.</p>

<p>In assumpsit against joint debtors, it is no defence, that one of them has been discharged from his share of the debt by an unsealed instrument in writing, although founded upon an adequate consideration.</p> <p>Should the discharged debtor be afterwards molested on account of the debt, his remedy is against the creditor by a special action, founded upon the discharge.</p>

<p>On Report from Nisi Prius, Tenney, J. presiding.</p> <p>Writ of entry.</p> <p>The demandant mortgaged the premises to Grove & Co., to secure his note to them of $209. He then conveyed the same to the tenant by warranty deed, subject to the mortgage. He was afterwards sued upon the note, and compelled to pay it on execution, and the mortgagees thereupon “ released and conveyed” to him all their rights under the mortgage. He now brings this suit as their assignee.</p> <p>The deposition of one Pike was introduced by the demand-ant, though objected to. It tended to prove, that the tenant verbally recognized a contract with the demandant to pay the note to Gove 6c Co.</p> <p>The tenant was bound to pay the mortgage debt.</p> <p>The payment of it by the demandant, under compulsory process, did not discharge the mortgage. By that transaction, he became subrogated to the rights of the mortgagees. Bul-lard v. Hinkley, 5 Maine, 272; Carle v. Butman, 7 Maine, 102 ; Gibson v. Crehore, 3 Pick. 475 ; Barker v. Parker, 4 Pick. 505; Hogdon v. Smith, 12 Mete. 511.</p> <p>If it is for the interest of the party to uphold the mortgage, an intent to do so will be presumed. Hatch v. Kimball, 14 Maine, 9; Hatch v. Kimball, 16 Maine, 146; Pool v. Hathaway, 22 Maine, 85; Campbell v. Vaughan, 24 Maine, 332.</p> <p>Even where the mortgagee had entered on the record a discharge of the mortgage, equity will uphold it when it is for the interest of the mortgager. Popkin v. Bumstead, 8 Mass. 491.</p> <p>The demandant is not estopped by his deed to the tenant, for it was made subject to the mortgage.</p> <p>1. The plaintiff conveyed to the defendant by warranty deed, all his right, title and interest in the premises. He no longer had any privity of title. He was not entitled to redeem. Elder v. True, '32 Maine, 104 ; True v. Haley, 24 Maine, 297.</p> <p>2. The plaintiff was estopped by the covenants in his deed to the tenant from purchasing this mortgage, or from acquiring any other outstanding title. The law is well settled, that where one conveys to another, by deed of general warranty, land to which he has not then a perfect title, any title subsequently acquired by the grantor, will enure, by estoppel, to the grantee. Fairbanks v. Williamson, 7 Greenl. 96; White v. Erskine, 1 Fairf. 306 ; Lawry v. Williams, 13 Maine, 281; Baxter v. Bradbury, 20 Maine, 260; Durham v. Alden & al. 20 Maine, 228 ,• Gardner v. Gerrish, 23 Maine, 46 ; Pike v. Galvin, 29 Maine, 183 ; Somes v. Slcin-ner, 3 Pick. 52; White v. Patten, 24 Pick. 324. Nor are the cases of Hatch v. Kimball, 14 Maine, 9, and Same v. Same, 16 Maine, 146, at all in conflict with this doctrine.</p> <p>3. A real action upon a mortgage cannot be sustained after the debt secured by it has been paid. Williams v. Thur-low, 31 Maine, 392 ; Chadbourne v. Rackliff, 30 Maine, 354.</p> <p>This debt had been paid before the assignment of the mortgage by Gove & als. to Kinnear, and the mortgagees then had no interest in the premises, and therefore could assign none. Barry v. Bennett, 7 Mete. 354.</p> <p>4. An assignment of a satisfied mortgage conveys no interest in the estate. Chadbourne & ux. & als. v. Rackliff, 30 Maine, 354; Holman v. Bailey, 3 Mete. 55.</p> <p>5. The writing on the back of the mortgage operates as a discharge, and not as an assignment. The debt had then been paid.</p> <p>6. Equity is with the tenant. He was under no obligation to redeem the mortgage. Elder v. True, 32 Maine, 104.</p> <p>He had made no “ promise, contract or agreement in writing” to answer for Kinnear’s debt to Gove & als. R. S. chap. 136, >§> 1.</p> <p>Nor had he, by any instrument in writing, engaged to discharge the mortgage. If he had done so by an instrument of as high a nature as the deed, then the covenants of warranty in the plaintiff’s deed would not include the mortgage. Brown v. Staples, 28 Maine, 497; Given v. Marr, 27 Maine, 212.</p> <p>7. Pike’s deposition should be excluded. It seeks to vary, explain or control by parol evidence, the plaintiff’s deed to the tenant. If it proves a verbal agreement, such agreement is void. R. S. chap. 136, <§> 1.</p>

On Report from Nisi Prius, Howard, J. presiding. Writ oe entry. Plea, general issue. The demandant is a widow, and claims under a deed, inar-tificially drawn, by which her son, Henry Barnes, on the 26th July, 1841, “ demised, granted and farm-let the land to her and her husband, their heirs, executors, administrators and assigns, to have and to hold the same for and during their natural lives.

On Exceptions from Nisi Prius, Shepley, C. J. presiding. Assumpsit for supplies furnished to Clarissa Bodge, as a pauper, in 1846. In 1829, she derived from her father a settlement in Lincoln. Whether she afterwards acquired a new settlement in Corinth, was the question raised in the case.

<p>In a written contract for the sale of all the stock of goods, in an apothecary’s store, the spirituous liquors -within the store and belonging to the Tender are, ex m terminorum, included.</p> <p>If the vender had no license to sell such liquor, the contract cannot be enforced by him against the vendee.</p> <p>Upon invoicing the property on such a sale, the making of a separate schedule of the liquors, by direction of both parties, if designed as an evasion of the statute, “ restricting the sale of intoxicating drinks,” cannot make the contract effectual as to the other goods.</p> <p>Exceptions cannot be sustained for the wrongful admission of testimony explaining a written contract, if the explanation shows nothing different from the legal import of the contract itself.</p>

On Exceptions from the District Court, Hathaway, J. Indictment for a conspiracy. After verdict against the defendant Roberts, he moved in arrest of judgment for insufficiency of the indictment. The motion was overruled, and exceptions were taken.

<p>Though, a mill-dam hare occasioned land to he flowed more than twenty-years, yet, if the damage thereby occasioned commenced' within that period, a claim to continue the flowing, without compensation, cannot be maintained upon prescription.</p>

<p>On Exceptions from Nisi Prius, Tennev, J. presiding.</p> <p>Philip Coombs, Philip H. Coombs and others owned a tract of land in Bangor. They conveyed it, in 1835, for the expressed consideration of one dollar, to the city, upon a condition that it should be inclosed as a common, and be kept unintersected by roads, for the proper use of the public forever. The deed was recorded in February, 1836.</p> <p>The defendant having obtained several judgments against P. & P. H. Coombs, seasonably levied his executions upon the land in 1841 and 1842, his attachments thereof having been made in 1837. This is a writ of entry against him for the land, brought in September, 1846.</p> <p>The tenant, in order to show that the conveyance by P. Coombs and P. H. Coombs, to the city, was fraudulent and void, as to the tenant, their creditor, offered evidence that they were insolvent when it was made, stating that to be the only evidence, of any description, which he should offer as to the fraud. The evidence was excluded. He then offered to prove that the bill of exchange upon which one of his judgments was recovered, was given in renewal for paper which originated in 1835. The evidence was excluded.</p> <p>He then offered to prove that his levies were delayed in order that some prior attaching creditors, o,n demands existing prior to the conveyance, should first levy, and that they did in fact levy on a large portion of the debtor’s estate. The evidence was excluded.</p> <p>He then offered to prove that the city, prior to his levies, had forfeited the land by a non-compliance with the conditions of the deed. For this purpose, he offered a lease made hy the city in 1839, by which they demised the land to Say-ward & Wingate for seven years, within which period the lessees were to decorate the same with transplanted trees, according to a prescribed plan; and, at the end of the term, to leave the land in a smoothed condition and laid down to grass. He also offered oral evidence that, under the lease, Say ward & Wingate fenced up the land, and excluded all ingress and egress to and from the same. The lease and the oral evidence were excluded.</p> <p>The demandants, in order to dislodge the imputation of fraud in the deed, and to show that the grantors received an adequate consideration for the land, introduced, (under objection,)— 1st; a contract executed by Roberts and others, in which they stipulated to purchase sixty-seven small lots of the grantors, lying on the several exterior . lines of the common, at the price of $300 for each lot; upon a condition that the “ common should be granted to the city to be forever used as a public common,” and 2d, copies of many deeds, made to Roberts and others of lots around the common at the above mentioned prices.</p> <p>The Judge ordered a verdict, pro forma, for the demand-ants, and the tenant excepted.</p> <p>1. No title passed from the Messrs. Coombs to the city; because the consideration expressed in their deed being merely nominal, the law construes the transaction to be nothing more than a gift.</p> <p>And the tenant “ offered to show that at the time of the conveyance the Coombses were actually insolvent.” It was therefore, a fraud on creditors; the grantors not being in a situation to make gifts.</p> <p>The Statute of 13 Eliz. c. 5, 'declares all gifts, conveyances and alienations, of real or personal estate, whereby creditors may be delayed or defrauded, void as against creditors.</p> <p>Perhaps it may be contended that this statute only protects prior creditors, and not subsequent ones, and authorities may be cited, which seem to sustain that position.</p> <p>No doubt a solvent person may make a voluntary conveyance or gift; but the question still returns, can an insolvent person do the same thing ?</p> <p>And upon what principle should the prior creditor be protected and not the subsequent creditor? Walker v. Burrows, 1 Atk. 94; Reade v. Livingston, 3 Johns. Ch. 481; Doe v. Routledge, 5 Cowp. 711; Parker v. Proctor, 9 Mass. 390; Bennett v. Bedford Bank, 11 Mass. 421.</p> <p>The deed from the Coombses to the city was not recorded until 1836. The tenant offered to prove that the bill of exchange, on w’hich one of his judgments was founded, was given in renewal for paper, which originated in 1835. A renewal is not payment, and therefore the tenant is to be viewed as a prior creditor.</p> <p>2d. The conveyance was made upon conditions, subsequently to be performed by the grantees. The language of the deed is, “ and also in consideration, and upon condition, that the parcel or tract of land herein intended to be conveyed, shall be inclosed as a common and be kept by said city unintersected by roads, for the proper use of the public forever. To have and to hold, &c., to the proper use of the public as a common forever. Shall well and truly hold as aforesaid, for the purposes as aforesaid, forever.”</p> <p>Now, I contend that the city have forfeited all interest, if they ever had any, by reason of a non-performance of those conditions.</p> <p>In March, 1835, the deed was delivered; the first Act of the city touching the premises, was in May, 1839, more than four years subsequent to the conveyance.</p> <p>What then ? Did they do any thing in submission to the conditions ? Directly the reverse.</p> <p>They leased the premises to Sayward & Wingate for the term of seven years, who fenced up this common (falsely so called,) and excluded all persons, even the grantors themselves from its enjoyment.</p> <p>Was such conduct, the having and holding to the proper use of the public as a common forever ? Hayden v. Stough-ton, 5 Pick. 528; Gray v. Blanchard, 8 Pick. 284.</p> <p>Assuming then that the grant was upon a condition subsequent, and that the condition had been broken, the Coombses’ “ right of entry” was attachable and subject to a levy. R. S. c. 94, $ 1; R. S. c. 114, $ 30.</p> <p>The defendant took an actual possession by virtue of his levies in 1842, and therefore no formal entry, in order to re-vest the estate in himself, could be necessary. Kennebec Bank v. Drummond, 5 Mass. 323.</p> <p>3. The deed is void, because the city were not legally authorized to receive it, coupled with a condition, that the lot “ should be inclosed as a common.”</p> <p>How inclosed ? with a wooden or metalic fence ? Suppose the kind of fence had been mentioned at a cost of ‡10,000, could money for that purpose have been raised by a legal tax ? What law of the State gives a city or town such authority ?</p> <p>The deeds to Roberts and thirteen others, and also the contract signed by Roberts and thirty-eight others, were inadmissible. They contradict the deed to the city, as to its consideration.</p> <p>They were transactions between other parties, — were immaterial to the issue; did not authorize an insolvent person to give away so large a territory, even for the purpose of trying an experiment, thereby jeopardizing his creditors.</p>

On Exceptions from Nisi Prius, Tenney, J. presiding. Replevin, for a steer. The defendant alleges that the steer was doing damage in his close, and avows the taking. The plaintiff replies that the steer escaped from his land into that of the defendant, by reason of an insufficiency in that part of the partition fence, which the defendant was bound to maintain. The defendant rejoins, denying any obligation to maintain any part of the fence. Issue was taken upon the rejoinder.

Emily F. Martin was the daughter of the appellee. While a minor she became possessed of property in her own right, and her father was appointed as her guardian, July 1, 1845. No assets came to his hands until February, 1846. By R. S. c. 110, § 28, a guardian forfeits compensation for his personal services, if he neglects to settle his guardianship account in the probate office, at least once in three years.

On Report from Nisi Prius, Shepley, C. J. presiding. Assumpsit upon a promissory note of $300. The plaintiff, by a quit-claim deed, conveyed to the defendant a farm which was incumbered by an outstanding mortgage, made by an earlier proprietor.

<p>A nonsuit cannot be ordered, except by consent, after testimony bas been introduced in defence.</p>

On Exceptions from the District Court, Nice, J. Assumpsit for services by the plaintiff, as a surgeon. The plaintiff, with the aid of another person, and in concurrence with the views of consulting surgeons, had successfully performed a critical operation upon the skull of the defendant’s child, which had been injured by a falling weight. The exceptions were filed by the defendant.

On Exceptions from the District Court, Rice, J. Debt, founded upon R. S. c. 158, There was evidence tending to prove the falsity of the certificate. A witness testified to a declaration made by the defendant, which was proved to be untrue.

On Report from Nisi Prius, Wells, J. presiding. Covenant Broken. The defendant conveyed by deed of warranty in common .form, to Thomas Sawyer his heirs and assigns a dwelling-house, “ together with the privilege of getting water from the well” on an adjoining, lot. The plaintiff is the assignee of Sawyer. Prior to the conveyance to Sawyer, the well had been filled up, and a permanent brick store had been erected^ over its place.

On Report from Nisi Prius, Wells, J. presiding. Assumpsit. The defendants owed the plaintiifs about $3500, for which this suit was brought.

On Report from Nisi Prius, Wells J. presiding. Assumpsit, to recover assessments upon two shares in the stock of the company.

<p>Of tine liability of a person, upon a subscription made jointly by himself and others, agreeing to take shares in the stock of a corporation.</p> <p>Of the consideration, necessary to sustain a suit by a corporation upon such a subscription.</p>

<p>One, haying "been appointed by a “will, as executor and also as trustee, and haying giyen bond as executor, will be deemed to haye declined the appointment as trustee, unless he giye bond in that capacity also.</p> <p>It is a general rule that suits upon probate bonds are not maintainable, unless authorized by the Judge of Probate, or unless the amount due from the obligor has been ascertained by a judgment of Court. This rule, however, does not apply to suits brought by residuary legatees, whether the legacies be for their own benefit, or in trust for the use of others.</p> <p>"Where a testamentary trustee of the residuum of the testator’s estate has declined to act in that capacity, another person may be appointed in his room by the Judge of Probate.</p> <p>The person so appointed will have the rights of a residuary trustee, in relation to suits upon Probate bonds.</p> <p>If there be a residuary trustee, it is to Mm that the executor is to pay the residuary fund.</p> <p>If the executor, instead of paying such fund to the trustee, haye paid it, as executor, to some person haying no just claim to it, there is no jurisdiction in the Judge of Probate to allow for such payment in settling the executor’s administration account.</p> <p>A decree by the Judge of Probate, making such allowance, being merely void, will not preclude the trustee from receiving the amount of the fund in a suit upon the executor’s bond.</p>

<p>A general demurrer to a declaration containing several counts, is unsustainable, if any of the counts are good.</p> <p>In a declaration upon the covenants of seizin and of right to Sell, contained in a deed of land, the breaches are sufficiently alleged by negativing the words of the covenants.</p> <p>In a declaration upon the covenants of freedom from incumbrances, and for quiet enjoyment, the breaches must be specifically set forth.</p> <p>In a count for covenant broken, alleging several breaches, there may be a recovery for such breaches as are well assigned, although the assignment of some other breaches may be fatally defective.</p> <p>A declaration negativing the words of the covenant of seizin, is not defeasible on general demurrer, although it proceed to allege that the defendant’s seizin did not extend to a described part of the land.</p> <p>In such a case, the measure of damage is the consideration paid for that part of the land, with its interest.</p>

On Exceptions from the District Court, Rice, J. Assumpsit upon a note for fifty dollars, payable on demand in pine boards, and fifty dollars payable in pine shingles, of such quality as the plaintiff might select from those which the defendants were manufacturing at Taylor’s mills.

<p>On Exceptions from the District Court, Rice, J.</p> <p>Indictment for having in possession a counterfeit bank bill, knowing the same to he counterfeit, and intending to pass it, whereby to defraud the bank.</p> <p>The indictment does not purport to set forth the bill according to its tenor, or in its words and figures, but according to its purport and effect.</p> <p>The Judge refused to give instructions to the jury as the defendant had requested, and to that refusal the defendant excepted. He then gave to the jury certain instructions to which also the defendant excepted.</p> <p>The verdict was against the defendant, and he thereupon moved an arrest of judgment, for the reason, that “ the indictment does not profess to set out the bank bill alleged to be counterfeit, in the words and figures thereof, or according to its tenor, but only according to its purport and eifect.”</p>

<p>On Exceptions from Nisi Prius, Wells, J. presiding.</p> <p>Trover for an unindorsed promissory note, made payable to Betsey Parker.</p> <p>The plaintiff’s testimony tended to prove the ownership of the note to be in her, by a gift from the payee. The defendant introduced testimony tending to show that the noté was given by the payee to one Mary Anne Parker, as a “ donatio causa mortisthat Mary Anne took it into possession at the time of the gift; and that it was seen .in her hands several times within the next subsequent four years.</p> <p>He also proved that, after that period, Mary Anne sold the note to one Thomas Parker, of whom it was purchased by the defendant.</p> <p>Several witnesses for the plaintiff testified, that, on several occasions within those four years, Mary Anne declared that the note had been given not to her but to the plaintiff. It did not, however, appear that, upon either of those occasions, the note was present, or that any act was done in relation to it. To the admission of those declarations, the defendant seasonably objected, and now files exceptions.</p> <p>Mary Anne was not used as a witness by either party, though still living. The defendant also moved for a new trial, on the ground of newly discovered evidence.</p>

On Exceptions from the District Court, Rice, J. Trespass quare. The question was one of boundary. The action was referred by rule of Court to Rufus B. Allyn, Esq., who was to decide the action on legal principles, and to establish the line between the parties. There was no written agreement to refer.

On Exceptions from the District Court, Hathaway, J. Debt on bond. The bond was dated April 8, 1849, which was the Lord’s day, and for that reason the defendants contended that it was void. The Judge ruled that the date of itself, without further evidence, would not support the defence. To that ruling the defendants excepted.

<p>On Exceptions from Nisi Prius, Tenney, J. presiding.</p> <p>TRESPASS Q.UARE.</p> <p>The verdict was for plaintiff, and the defendants excepted.</p>

Trespass on the case. The parties agreed the facts, and thereupon submitted the case to the Court, with power to draw inferences as a jury might. Of the facts thus agreed, the following particulars only are necessary for understanding the opinion of the Court.

<p>The three years «before the commencement of the action ” during which a proprietor of land, flowed by a mill-dam, has a lien upon the mills, mean three years before the institution of the original complaint.</p> <p>A judgment, recovered upon such a complaint, is a charge upon the estate. The obligation to pay the damage runs with the land, and an action to recover the amount may be maintained against an assignee of the estate.</p>

On Exceptions from the District Court, Hathaway, J. Assumpsit for labor done upon the highway, of which the defendant was the surveyor. The testimony tended to show that the defendant employed the plaintiff to do the work, saying he would pay him for it.

<p>ON Exceptions from Nisi Prius, Tenney, J. presiding.</p> <p>Assumpsit upon an. accountable receipt, given to a deputy sheriff, for cattle attached on writ.</p> <p>The defence was that the cattle were not the property of the defendant in that suit; that, though formerly his, he had, several years before the attachment, sold them to his son. The plaintiff contended that the sale was fraudulent and void, as to the creditors of the father. The father was indebted at the time of the sale, and it appeared from the testimony that a part of the consideration of the sale was an arrangement, by which the son was to board and support the father.</p> <p>The Judge was requested to instruct the jury that, if the purpose of the sale was in part to secure the maintenance of the father, he then being indebted, it was void as to the plaintiff. This request was refused. To that refusal the plaintiff excepted.</p> <p>In a deposition, used by the defendant, the deponent, in answer to an interrogatory, stated that the reputation of an opposing witness for truth was “ not very good.”</p> <p>On cross-examination, he stated, that the complaint against the witness was for not fulfilling his agreements. The plaintiff objected to these parts of the deposition as evidence. But they were admitted. To that admission, the plaintiff excepted.</p> <p>The requested instruction ought to have been given. Rollins v. Mooers, 25 Maine, 192; Smith v. Smith, 11 N. H. 460; Cram v. Stickles, 15 Term. 252; Jones v. Spear, 21 Term. 426 ; Tyner v. Som-erville, 1 Smith, (Indiana,) 149.</p> <p>The impeaching part of the deposition should have been excluded, as it related wholly to the witness’ non-performance of his engagements. 1 Greenl. on Ev. 512, §> 46; Inhabitants of Phillips v. Inhabitants of King field, 19 Maine, 375.</p>

<p>Private corporations exist by legislative grants, conferring rights and powers for special purposes.</p> <p>Such grants constitute legal contracts, and the Legislature cannot impair the obligation of them.</p> <p>A company, incorporated as trustees of a fund, with the power and duty of investing it and appropriating its income to the public schools of a town, is a private and not & public corporation.</p> <p>Though the Act incorporating the trustees authorized them to create the fund by a sale of the town’s property, the approval of the Act, by the town, may be inferred from their long continued acquiescence in the trustees’ proceedings according to its provisions.</p> <p>In such a case, the trustees, holding the fund, as a private corporation, for the use of such schools, under a legislative contract, cannot be divested of it or of any part of it, by any legislative action.</p> <p>A statute, therefore, which should assume to distribute the fund between the schools of such town and those of another town, would be inoperative, although the latter town be created by a division of the former.</p>

<p>It is only in the form of declaring, and not in any matter of substance, tha^ the B. S. e. 115, § 13, has abolished the distinction between trespass and ease.</p> <p>An allegation of breaking and entering into land, is of substance and not of form merely.</p> <p>A count, containing no such allegation, but framed technically in ease, for injuries done to land, or in trespass de bonis for goods taken from it, cannot be sustained by merely proving an unlawful entry.</p> <p>Nor can a declaration in trespass guare clausum, alleging immediate acts of injury to land, be sustained by merely proving an injury, consequentially resulting from acts done upon other land.</p> <p>To such a declaration, an amendment, introducing a count, framed as in case, alleging the damages to have been consequential, is^not allowable.</p>

On Facts agreed. Covenant Broken. This action is brought upon the defendant’s covenant of freedom from incumbrances contained in a deed conveying real estate. The deed was made by the defendant to one D. P. S., by whom the premises were conveyed to the plaintiff. At the time of the conveyance, there was an outstanding mortgage upon a portion of the estate. The debt, then due upon the mortgage, is still unpaid.

<p>A testator appropriated and bequeathed a sum of money, of which the interest was to be annually applied toward the support of “ TJniversalist preaching,” and directed his executors to pay the fund to the trustees of a TJniversalist society in the town of S., provided one should be formed within two years from the testator’s death, and provided also that an additional annual specified sum should be raised and applied from other sources toward the support of such preaching.</p> <p>The further direction of the will was that, upon a failure in the performance of the foregoing conditions, the fund should go to another TJniversalist society upon certain prescribed conditions, and that, if the last mentioned conditions should fail to be performed, the fund should be paid' by the executors to the heirs of the testator; —</p> <p>Held, that th'e bequest, being for charitable or pious uses, was sufficiently certain in its purposes to be upheld; —</p> <p>that the society, if formed within the two years, would be competent, as cestuis que trust, to receive the benefit of the fund; —</p> <p>that the trustees, whom the society should appoint, and not the society itself, were the legatees; — that they alone could maintain an action against the executors, for the fund; —</p> <p>and that the requirement to raise and apply the prescribed additional sum annually, was a condition precedent to any claim by the trustees against the executors.</p>

On Report from Nisi Prius, Howard, J. presiding. Writ of Entry. Francis Cushman, in 1838, executed a deed of the premises to the demandant. The tenant was at that time his wife, and has ever since been in possession of the land. Mr. Cush-man died in 1843, not having acknowledged the deed. It was however recorded since the commencement of this suit, its execution having been proved by the subscribing witness in Court.

<p>Neither the common law or any enactment authorizes an action on contract to he maintained against husband and wife jointly.</p>

On Report from Nisi Prius, Shepley, C. J. Trespass. One count was quare clausum, and another was de bonis aspo7'tatis.

On Report from Nisi Prius, Shepley, C. J., presiding. Trespass, quare clausum.

<p>Assumpsit.</p> <p>The plaintiffs are a Mutual Fire Insurance Company. On the 24th • Nov. 1847, they issued a policy to the defendants for three years, and received their note of that date for <$250, “ payable in such portions and at such times as the directors may, agreeably to their charter and by-laws, require.” By these proceedings, the defendants became members of the company.</p> <p>By section 10, of the Act of incorporation, it is provided, that “ all assessments shall be determined by the directors,'.and shall always be in proportion to the original amount of the deposit note ; and any member of said company, or his legal representatives, neglecting or refusing to pay the amount which he may be assessed on his note in conformity to this Act, for the space of thirty days after demand shall have been made for the payment of the same in manner the said directors shall appoint, shall be 'liable ito the suit of said directors for the recovery of the whole amount of said note with, costs of suit.”</p> <p>On Jan’y 12, 1848, an assessment was duly made for the payment of losses incurred by the company. The amount assessed against the defendants was $4,25. On June 7, 1848, they received from the treasurer a written notice as follows; viz. — “Treasurer’s Office, Concord, N. H., June 5, 1848. “ The assessment on your deposit note, amounting to $4,25, which was ordered by the directors on the 12th of Jan’y last, remains unpaid. By a vote of the corporation, passed at the annual meeting on the 23d of May, 1848, your insurance is suspended in thirty days after you have been notified by letter or otherwise, if payment be not made; and should your property be destroyed by fire, during such suspension, you will have no remedy upon this company. The directors rely upon the prompt payment of the assessments to meet losses, and if these fail, the members of the company cannot receive their pay when their property is destroyed by fire. Be pleased to transmit the amount of your assessment at once to the office by mail or otherwise.</p> <p>“ Yours, &c.</p> <p>“ Ino. Whipple, Treas.”</p> <p>An assessment of $33,75, was made on Nov. 15, 1848, and a further one of $40,00, was made on July 15, 1849. This suit was brought to recover these last two assessments ; the amount of the first one, $4,25, having been previously tendered.</p> <p>The defence was based upon the notice of the 5th of June, 1848, given as aforesaid to the defendants.</p> <p>The case was submitted to the Court for a legal decision.</p> <p>The note is not payable absolutely, but upon contingencies and in proportions, to be subsequently ascertained.</p> <p>When the note was given, there was no power in the plaintiffs, either by their charter or by-laws to suspend a risk, on account of the non-payment of assessments. The bylaw, authorizing such suspension, was a subsequent enactment. That by-law, with the notice under it of June 5, 1848, was a gross and palpable violation of the company’s contract. By it, they undertook to dissolve the contract. They notified the defendants that they were no longer insured. They cut off the obligation of the policy, the very obligation upon which the consideration of the note rested. As to all subsequent assessments, the note became void.</p> <p>Between original parties, a partial failure of consideration is a defence, pro tanto, upon a note. Herbert v. Ford, 29 Maine, 546.</p> <p>The policy and the note were one transaction, and constituted mutual and dependent contracts. The suspension of the former defeated the obligation of the latter. The company have never revoked that suspension, nor done any thing to revive the obligation of the note. In withdrawing their liability, they canceled ours, and we had good right to take them at their word. The first notice of the intent to suspend the obligation of the policy was given in June, and related back to a previous date, so that the policy had then been suspended for months, without the knowledge of the insured. The consent of the insured to be discharged from such a company may well be presumed. That consent was also shown by the refusal to pay the subsequent assessments. Having been turned out of the company, the defendants were content to remain out.</p>

On Report from Nisi Prius, Howard, J. presiding. Action oe the case, submitted to the Court upon the evidence. The material facts, as determined by the Court, are as follows. — The George’s Canal Company ivas incorporated after the 16th of February, 1836. Its shareholders, therefore, to the respective amounts of their stock, were subject to personal liability for the debts of the company, as prescribed. R. S. c. 76, § 18, 19 and 20.

On Facts Agreed. Writ of Entry. While Oliver M. Pike was owner of the land, it was levied on an execution against him in favor of one Pease, under whom the tenant makes title. Nineteen months after the levy was made, Oliver M. Pike conveyed the land to Oliver M. Pike, jr. who conveyed the same by deed to the demand-ant. This deed was prior to the deed from Pease to the tenant. The question then is upon the sufficiency of the levy.

On Exceptions from Nisi Prius, Howard, J. presiding. Assumpsit. The first count was for $4000, money had and received of the intestate.

On Exceptions from Nisi Prius, Shepley, O J. presiding. Petition for Partition. William B. Larrabee died, possessed of personal - and real estate. He left a wife, Mary W. Larrabee, and also a sister, Mary Larrabee, who was his sole heir at law. He made a will, by which he bequeathed to his wife all his personal estate, with the exception of a clock, and devised to her the use of his real estate for her life.

On Report from Nisi Prius, Howard, J. presiding. Assumpsit, upon a policy of insurance against fire. On October, 1850, the plaintiff took the lease of a cotton factory mill, for one year from November 1st, 1850. The lease stated the consideration to be $2171,01, then paid by the cancelation of bills for repairs and improvements already made upon the factory, by the lessee, this plaintiff.

Bill in Equity by a mortgager to redeem his right of redemption, against a sale of it made on execution against him. The bill and answer show the following state of facts : — The plaintiff was seized of the right to redeem certain mortgaged land, of which he was in possession. That right was sold on an execution against him. The defendant was the purchaser at $850. There was a building upon the land, which was occupied by the plaintiff and by several of his tenants.

Cases on Exceptions and on Demurrer from the District Court, Rice, J. Indictments under the Act of June 2, 1851, “ for the suppression of drinking houses and tippling shops.” The second section of the Act authorizes the appointment, in each city or town, of some suitable person, as its agent “to sell at some central and convenient place within such town, spirits, wines and other intoxicating liquors, to be used for medicinal and mechanical purposes and no other.

<p>In a trustee process, co-partners, summoned as trustees, and indebted to the principal defendant, may set off a claim due from him to one of the co-partners.</p>

ON Report from Nisi Prius, Wells, J. presiding. AssumpsIt upon a bill of exchange drawn by the defendant payable to his order and by him accepted and indorsed to the Franklin Bank, upon a settlement of accounts. It had an indorsement as follows: — “ Pay to the order of J. C. Brewer, Cashier. John Otis, President of Franklin Bank.” Though objected to, the plaintiff, by leave of the Judge, struck out the last indorsement.

On Report from Nisi Prius, Wells, J. presiding. Petition for partition. The petitioner claimed title under sale to him of an equity of redemption by an officer upon execution. Whether that title was valid, depended upon the sufficiency of the officer’s return on the execution. In relation to the notices of the time and place of the sale, there appeared to be an erasure upon the return. That erasure is described in the opinion of the Court.

On Report from Nisi Prius, Wells, J. presiding. Trespass, quare clausum. This plaintiff had, on a former occasion, brought quare clausum, for trespass upon the same land against this defendant, who thereupon pleaded the general issue, with a brief statement, that the title to the land was in one Brann, and also in one Harriman, and that by the authority of them respectively, the defendant did the acts complained of. He, however, failed to prove any such authority.

<p>Covenant Broken.</p> <p>The plaintiff was owner of one eighth of the barque Arco Iris, and of her cargo. Among other things the cargo consisted of a quantity of boards. The barque sailed from Maine about August 1, 1849, under command of Captain Coburn, a part owner, bound to California, with general authority to dispose of the vessel and cargo according to his discretion. He touched at Monte Video, where, in October, 1849, he took in passengers, sold a small part of the boards, and used a few, not exceeding five hundred feet, in erectiug some new berths, &c.</p> <p>On the 5th of January, 1850, the barque having then been about five months on her way, the following contract was made by these parties, under their seals, viz : —</p> <p>“ Whereas the said Smith is owner of one eighth of a part of a cargo of boards amounting to one hundred and eleven thousand two hundred and eighty feet, more or less, shipped from Gardiner on board the barque Arco Iris, and now supposed to be on the way between Monte Video and California, it is agreed between the parties that the said Smith hereby sells and transfers to the said Davenport all his right, title and interest in the said boards at the rate of two hundred dollars per thousand feet, for what are delivered in California, to be paid in six months from the date of the arrival of the lumber at California at the port of discharge. The said Smith is to deliver the said lumber alongside at a reasonable time after its arrival. The said Davenport has the privilege of appointing an agent to receive and sell the said lumber, and is to pay all expenses incident thereto, and is to give his note in payment of said lumber as soon as its arrival and delivery can be ascertained.</p> <p>“And in case the lumber, from any cause, should not arrive, then this agreement to be null and void.”</p> <p>The barque arrived at San Francisco in California in February, 1850. No person appeared there to take any delivery or charge for the defendant. The boards were disposed of by commission merchants, by direction of the captain. There were no wharves at San Francisco, and vessels were unloaded half a mile from the shore, at great expense, by the aid of lighters.</p> <p>On May 29, 1850, Capt. Coburn addressed a letter to the plaintiff from San Francisco, stating the quantity of boards, landed at California, to be 89,421 feet. This letter also names the prices, expenses and commissions of the sale, and was placed in the defendant’s hands several weeks prior to the commencement of the suit, which was on April 29, 1851. The captain in his testimony states that, at the time of testifying, he had rendered an account of sales of a part only.</p> <p>On July 16, 1850, the plaintiff apprised the defendant in writing, that the vessel arrived at California on February 19, 1850, and that his one eighth of the lumber landed there, was 11,177 feet, for which he claimed the defendant’s note at $200 per thousand, amounting to $2335,40, payable at six months from the time of said arrival.</p> <p>On the 29th of the same July, the plaintiff apprised the defendant in writing, that his proportion’ of the avails of the California sales was $375,10, which was deposited, subject to his order, in the hands of H. T. one of the joint owners.</p> <p>This action was brought upon the contract between the parties. The defendant pleaded the general issue, non est factum, with brief statement; 1st, that he has not broken but has kept and performed his covenants; 2d, that the plaintiff, at the time of making the contract, was not the owner of one eighth of said cargo of boards, although in and by ihe contract, he engaged that he was such owner; 3d, that one eighth of the boards never arrived at California, in a condition to be there delivered to the defendant, nor did the plaintiif ever deliver the same or any part thereof, to him or to his agent there ; 4th, that the time of the arrival of the boards, for whieh the plaintiff claims, " was never ascertained and made known by the plaintiff to the defendant nor by said plaintiff and defendant before the commencement of this suit,” according to the meaning of the contract.</p> <p>The case was submitted to the Court for its adjudication, with power to draw inferences as a jury might do.</p> <p>offered an argument of much length and research.</p> <p>The following epitome cannot adequately present it, and yet it is all for which room can be here allowed. —</p> <p>By the contract in suit, Smith guarantees to the defendant, that he was then the owner of one eighth of a part of a cargo of boards, the exact quantity unknown, but supposed by Smith to be 111,280 feet, on board the barque, and supposed to be on the way between Monte Yideo and California ; and he sells to Davenport all his right and interest in the one eighth of a part of such cargo of boards, and binds himself to deliver the same in California, to Davenport’s agent, appointed to receive the same; with a proviso, that, if said one eighth of a part of said cargo of boards should fail of arrival at California, the contract was to be void.</p> <p>The obligations of the contract were mutual and dependent. In such cases, the one party can claim performance of ihe other, only upon his own performance of his part of the obligation. 2 Poth. App’x, 43 ; 4 T. R. 671; 7 T. R. 125; 8 T. R. 366; Chipman on Con. 47. This principle appears to be conceded by the plaintiff; for he has deemed it necessary to allege, that the boards which he sold to the defendant arrived at California, and that the time of the arrival was ascertained on July 16, 1850. The onus is then upon the plaintiff to prove performance of his part of the contract.</p> <p>1. The plaintiff warranted his then ownership of one eighth of that cargo of boards which had been shipped at Gardiner on board the barque. The contract being under seal, he is estopped to deny such ownership. Smith’s Law of Contract, Law Lib. April No. of 1847, p. 23, note c.; Carpenter v. Butler, 8 M. & W. 200; Co. Litt. 352, b. He must, therefore, prove that ownership. It was upon the faith of that warranty, that the defendant purchased. The plaintiff undertook to deliver to the defendant at California the full one eighth of said cargo of boards. He cannot, therefore, be permitted to allege that his ownership was, at the time of the contract, less than the one eighth of the cargo as it was, when shipped from Gardiner, or that the delivery of a less quantity than that, is a performance on his part.</p> <p>But the facts proved are that, before the time of making the contract, a part of the boards had. been sold, and a part used by the captain, at Monte Yideo.</p> <p>By the failure to deliver that full one eighth of the original cargo of boards, the contract, according to its express terms, became void; nor will this effect be avoided by the words that the defendant should pay “for what are delivered in California.” For, “ in all contracts, he that speaks obscurely or ambiguously, speaks at his own peril,” “ and such expressions are to be taken most strongly against him.” Noy’s Max. 148.</p> <p>The expression, “for what are delivered in California,” manifestly refers only to the words, “ more or less,” in the contract. As it was unknown from the first, what was the quantity on board, it was to be ascertained on the delivery. Otherwise, the plaintiff might have retained any part, which his interest or caprice might dictate, and the defendant’s purchase thereby become fruitless.</p> <p>Neither can it be maintained that the defendant was merely to take the plaintiff’s place in relation to the cargo ; because, 1st, The contract shows that the plaintiff was but a tenant in common, and yet, by the effect of the contract, he stipulated for the delivery of a divided eighth. It was to the defendant a valuable part of the contract, that he should receive his part in severalty; 2dly, because it is a rule that every part of an instrument shall, if possible, be made to take effect. Chit, on Con. 4th Ed. 69, 73; 9 Pick. 422; 10 Pick. 230; 13 Pick. 167. That the defendant’s part of the boards were to be delivered in severalty, is apparent from the plaintiff’s agreement “ to deliver them alongside,” and that defendant might appoint an agent “ to receive and sell” them.</p> <p>The contract was imperfect. It fixed California as the place for delivery of the boards. California had several ports. It could not be known at which one the delivery should be made. Unless that were known, the defendant could not have the benefit of appointing an agent. A further agreement therefore was necessary, without which the contact cannot be enforced.</p> <p>But if, from the evidence and the circumstances, the Court might infer that San Francisco was the contemplated place for the delivery, the plaintiff is not relieved from difficulty. That city was without wharves or landing-place. Yessels were discharged, half a- mile from shore. The harbor was full of vessels. Where should the defendant’s agent apply for the boards, to have them delivered in a reasonable time, as agreed? Was not something to be done, or some notice given by the plaintiff to secure to the defendant some availability in having an agent as stipulated ? Was the agent to watch month after month, and explore every vessel till he should find the Arco Iris ? The requisite acts on the part of the plaintiff in this respect, have not been proved, nor can be, for they were never performed.</p> <p>Nothing has occurred in this case to exonerate the plaintiff from a full performance on his part. Before entitled to a suit upon the contract, he was to do every thing that could he done without the concurrence of the other party. Chit, on Con. 53; Chit, on Plead, 315, 3d Ed; 2 Salk. 623 ; 2 Poth. App. 44, No. 8; Yelverton, 87, Ed. by Mete. ; 1 Poth. part 3, art. 6, § 2, 360.</p> <p>The plaintiff alleges the delivery of 11,177 feet. This was short of the quantity stipulated for. The Captain testified that he sold some, and used some in October, at Monte Yideo, and his deposition, which is referred to, shows that he there sold over 15,000. This was before the sale to the defendant.</p> <p>Thus the plaintiff never had in California the quantity of boards which he contracted to deliver there to the defendant’s agent. It was, therefore, out of his power to perform as he had agreed. The contract was entire, and cannot be apportioned. 2 Poth. 45, App. 8, 46; 7 T. R. 381; 3 Wend. 112; Comyn’s R. 117; 2 Penn. 63; Chit, on Con. 4th ed. 352; 2 Doug. 620 ; Cro. El. 272 ; Comyn’s Dig. Pleader, c. 52; 2 Saund. 351; 2 Lev. 23; Willes 496 ; 6 T. R. 665; Yelv. 76.</p> <p>The principle established by these and many other authorities, demonstrates that unless the plaintiff carried and delivered the full quantity of boards contracted for, he can recover nothing.</p> <p>There was no delivery of any boards at California ; there was no preparation to deliver any. Mere unloading was not delivery. Neither were the boards contracted for ever carried there.</p> <p>Thus was there an entire failure of the plaintiff to perform his contract.</p> <p>Has he then any excuse for non-performance ? There surely is no excuse that he can rely upon, for he has averred none. In 1 Chit, on Plead. 309, it is laid down, “whenan obligation on the defendant to perform his contract depends on any event, which would not otherwise appear from the, declaration, it is obvious that an averment of such event is essential to a logical statement of the cause of action, and should precede the statement of the defendant’s breach. Such averments in a special action of assumpsit usually are, of the performance or an excuse for non-performance. See Chip, on Con., Specif. Art. 41. A plaintiff, counting upon a dependent contract must aver performance on his part, or that he has done all in his power to a performance.</p> <p>The plaintiff then, not having averred any excuse for nonperformance, can rely alone upon proof of actual and full performance on his part. But it has been already shown, that there was no such performance. The plaintiff was not at California to deliver the boards; he had no one there authorized or capable to do it; and the boards were never there. Hence it was unnecessary that the defendant should have had any agent there to receive them. The plaintiff can find no protection in the fact that, prior to his contract of sale to the defendant, the boards, the very subject matter of the sale, had been sold to another. It was for him and not for the defendant to foresee and guard against such a contingency. 2 Black. 'Com. 340 ; Co. Litt. 206, a; Broom’s Max. (110, 111,) 90 p.; Noy’s Max. 137) (31); 2 Co. Litt. 334.</p> <p>The note of the defendant was, by the contract, to be given on the ascertainment of the day of the barque’s arrival. Until after the bringing of the suit, that day had not been ascertained. The plaintiff relies solely upon his letter to the defendant stating the time. Could such a bare statement, by the plaintiff only, bind the defendant, when perhaps the barque had never arrived, but been lost at sea ? And to this day the quantity of boards carried to California has never been ascertained. So says the Captain’s testimony. His return of the amount was “ of a part only.” With no ascertainment of the time of the arrival, with no ascertainment of the quantity carried, with no notarial documents, with not even a survey bill, and when in fact the lumber contracted for had never arrived, how could the defendant be bound to give his note to so large an amount as that claimed in the plaintiff’s letter; and especially when by the express terms of the contract, it was to be void “ in case the lumber,” contracted for, “from any cause should not arrive ?”</p>

Petition foe. Partition. The case appeared to be as follows: — Joseph North and Hannah, his wife, were seized in her right of a valuable tract of land in Augusta.

On Exceptions from Nisi Prius, Wells, J. presiding Assumpsit upon a promissory note, given by the defendant, in March, 1847, to Nathaniel Motley and by him indorsed to the plaintiff. The plaintiff was the wife of said Nathaniel until May, 1850, at which time there was a divorce a vinculo, for the reason (among other things,) that he had deserted her for many years.

On Report from the District Court, Rice, J. Assumpsit. At the date of the writ, the defendants all resided in this State. The service upon Lowell was made by arresting his body and holding him to bail. Upon the other defendants the service was admitted to have been legally made. On the back of the writ is the following certificate of the oath, made by the creditor to authorize the arrest: — “Kennebec, ss.

<p>A bailee of personal property, injured while in his possession, may, in his own name, recover the amount of the injury in an action against the wrongdoer.</p>

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Assumpsit upon a note, dated Jan’y 28, 1845, given to the plaintiffs and signed by H. McIntosh, J. Spofford and the defendant, to the plaintiffs, payable at 60 days. Received, Renewed. The note was read to the jury.

On Report from Nisi Prius, Shepley, C. J. presiding. Assumpsit upon two accounts annexed to the writ. The parties owned a brig in equal shares. The plaintiff expended money and articles in the repairs and outfits, and charged the same to “the brig.” The bill, as made up by the plaintiff, amounted to ¡$406,81. Afterwards the defendant’s half of the brig was sold on execution against him.

On Exceptions from the District Court, Rice, J. The defendant was master of the schooner Grecian. She was lying at the port of King William in Virginia. The plaintiff shipped on board of her a quantity of oak timber to go on freight to East Thomaston in Maine.

On Report, from Nisi Prius, Shepley, C. J. presiding. Debt on Bond. The plaintiffs were merchants, resident in Boston. One Reed, a trader in Bath, was indebted to them. They sent their demand to an attorney to be collected or secured. The attorney took a bond to the plaintiffs signed by said Reed and by one Tallman, in the penal sum of $5000.

On Report from Nisi Prius, Shepley, O. J. presiding. Trover, to recover the value of timber trees, cut upon the land of the plaintiff. The title to the land was claimed by both parties, and at the trial, the principal controversy related to that point. The evidence and the rulings upon it, it is not necessary here to present.

On Report, from Nisi Prius, Shepley, C. J. presiding. Writ of Entry. The land in controversy was a farm in Phipsburg. Held: be so stated by them.” In this levy the debtor’s share was not stated. 2d. The levy was inoperative, because in making it,'the officer did not give to the defendants a “ reasonable specified time,” as the statute requires, in which to appoint an appraiser.

On Exceptions from Nisi Prius, Shepley, O. J. presiding. Trespass against seven defendants for an injury done to the plaintiff’s dam across a stream in,Bristol, by making an opening in it, through which fish might pass.

<p>A commission merchant, who has sold a part of the goods left with him for sale, is entitled to a lien upon the residue for his commissions and for freight paid and for other advances.</p> <p>To secure his lien, he may maintain replevin for the goods, even against an officer who has attached them on precept against the general owner.</p> <p>His consent to become keeper of the goods for the attaching officer, does not defeat his right to maintain such action of replevin.</p>

On Exceptions from the District Court, Rice, J. The supposed trustee was a corporation.

On Exceptions from the District Court. After a party had referred to several pieces of documentary evidence, and to the plaintiff’s account book, and to the testimony which the plaintiff had given on the suppletory oath, and after he had detailed in extenso, what a witness, if present, would testify, this case was submitted to the District Court, “ upon the legal rights of the parties, to he decided upon the proper rules of law and testimony, the Court to draw inferences of…

<p>This is a criminal prosecution. It charges the sale of spirituous liquor in violation of the statute, and is brought before us for adjudication upon “facts agreed.”</p>