Volume 35 — Maine Reports

On Exceptions from Nisi Prius,- Appleton, J., presiding. Indictment.

<p>On eacts agreed.</p> <p>Assumpsit, brought by the assessors' of Waite plantation, arid involving the coristruction of the following Résolve', passed July 23, 1849; viz : —</p> <p>“ Resolved, that the assessors of Waite plantation or their successors in office are hereby authorized to commence and prosecute to final judgmerit actions, iri their own names, as assessors of the said plantation, against any persori, who shall or has cut and' carried away any grass or timber, without legal authority, from the land reserved for public uses, in said plantation. Said assessors may commence and prosecute as aforesaid an action for money had and received, to the use of said plantation, against any person who has sold without authority any such grass or timber, and shall be entitled to recover the amount of money received by such person and interest thereon. All surns collected by virtue of - this Resolve shall be used for the support of public schools in said plantation.</p> <p>“ The statute of limitation shall not be pleaded against ariy action commenced under this Resolve, unless the same would have barred an action commenced in behalf of the State.” This suit was brought under the authority of that Resolve. During the pendency of the suit, the Resolve was repealed. The case was submitted for such judgment as should be conformable to law.</p> <p>The Resolve vested a right in the plantation, which was the beneficiary for whom the reservation was made. The State’s compact with Massachusetts required the reservation to be made, and forbade any sale of the lots. The State is merely a trustee.</p> <p>Tt has the power, and is under obligation to provide means, by which the benefits designed shall be assured to the beneficiary. The Resolve merely surrendered the rights of the trustee to the cestui que trust. By a public Act of the same year, passed prior to the Resolve, plantations had power to establish public schools.</p> <p>In passing the Resolve, the State did but discharge its duty to the beneficiaries. What it has done in discharge of a duty, it cannot undo.</p> <p>But, further, there was .an actual acceptance by the beneficiary. Under that acceptance, this action was brought and is now prosecuted. Shall the State be allowed not only to resume its executed and surrendered trust power, but also to involve the beneficiaries in a bill of expense and of costs ?</p> <p>If so, we should no longer feel humiliated that Massachusetts was permitted to impose upon us a constitutional obligation to take care of our education and our morals, our ministers and children.</p> <p>The repeal was not merely a remittitur of a penalty or forfeiture, as in Potter v. Bturtevant, 4 Greenl. 154.</p> <p>It was not a regulation of remedy, as in Oriental Bank v. Frieze, 18 Maine, 109. Our action was before the judiciary. While so, the Legislature assumed, under the form of a repeal, to defeat the rights which it had already surrendered and vested in the plaintiff. Such an assumption of power is unconstitutional and void. The Governor v. Porter, 5 Humphrey, (Tenn.) 165.</p> <p>A power to regulate the remedy does not include the right to take away all remedy.</p> <p>But, if the repeal is to be sanctioned, and the action to be thereby defeated, no cost can be allowed to the defendant. Thayer v. Seavy, 11 Maine, 284.</p>

<p>On Exceptions from the District Court, Hathaway, J.</p> <p>Assumpsit.</p> <p>The plaintiffs, as a corporation, were authorized to erect dams, sluice-ways and other improvements in the Machias river, to facilitate the driving of lumber, upon which they were to have right to a toll. The rate of the toll was to be proportionate to the sums expended in making the improvements. For the purpose of ascertaining the amount of such expenditures, the charter, § 11, required that the accounts should “ be audited” by the County Commissioners. There was an amendatory Act of 1846, which is sufficiently recited in the opinion of the' Court.</p> <p>Under their charter, the plaintiff’s erected works and improvements on the river, through which the defendants drove their logs, and this suit is brought to recover tolls for the same.</p> <p>The plaintiffs read in evidence an instrument, dated Jan. 8th, 1842, signed by “ Ichabod Bucknam and Joseph Adams, County Commissioners,” certifying that they had examined the accounts of the expenditures made by the company during the year 1841; that, they had found the accounts to be properly vouched and correctly cast, and that they amounted to $6848,83.</p> <p>The certificate did not purport that the examination of the accounts was had at any term or court of the County Commissioners, nor was any entry concerning the same ever made in the records of that court. The defendants objected to the introduction of the certificate, because it did not purport to show any action by the County Commissioners, as a judicial tribunal, .and was never recorded. There was other evidence in the case.</p> <p>The Judge ordered a nonsuit, to which the plaintiffs excepted.</p> <p>If the provision in the 11th section of the Act of incorporation be a condition precedent to the plaintiffs’ right to recover, the condition must be complied with, and the duty performed before this action can be maintained. Whether the duty be a condition precedent or one merely directory, in the management of the affairs of the corporation, depends upon the nature and object of the provision in the charter. Middle Bridge v. Brooks, 13 Maine, 391; Wales v. Stetson, 2 Mass. 146; Bank United States v. Dandridge, 12 Wheat. 64.</p> <p>Corporations stand on the same footing with natural persons, open to the same implications, and receiving the benefit of the same presumptions.</p> <p>The public have an interest in the audit and record of the bills, showing the expenditures. The record was to inform people what was legally required of them, and thus to protect them from fraud. The auditings were for the benefit of the public, as well as the corporation. The nature of the provision, and the public convenience, require them to be of record. The Legislature must lrave intended that the adjudications should be of record, by restricting the ultimate remedy, (in case of an overcharge of toll upon works gone to decay,) to an appeal to the County Commissioners.</p>

On Exceptions from Nisi Prius, Howard, J., presiding. Assumpsit. The plaintiffs owned a schooner, which the defendant sailed as master. It became a question whether the defendant was on hire by the month, or whether he took the vessel on shares. The plaintiffs offered the deposition of one Varnum to show, that he had verbal authority from the plaintiffs to let the vessel on shares, and that he did accordingly so let her to the defendant.

<p>By the B. S., sheep, found doing damage upon the land of any person, are ' liable to be impounded by him, as a remedy to recover for such damage.</p> <p>That remedy, however, does not accrue, if the sheep, being rightfully upon the adjoining land, escaped therefrom through a defect in that distinct part of the division fence, which the person, suffering the damage, was, by prescription or otherwise, bound to maintain.</p> <p>Brom the maintenance of a partition fence jointly by the owners of the adjoining lands, for however long a period, there can arise no prescriptive obligation upon either of them to maintain any separate and distinct part of it.</p> <p>If, therefore, through a defect in such joint fence, the sheep, which are rightfully upon one side of it, escape into the land upon the other side, and do damage to it, they are liable to be impounded.</p>

On Report from Nisi Prius, Howard, J., presiding. Writ of Entry. In 1825, the demandant obtained a bond, conditioned that, if he paid the proprietors an agreed sum, they would convey to him a lot of land, No. 24. He claimed that that lot includes the “ Swamp lot.” The proprietors thought otherwise, and in April, 1844, conveyed the Swamp lot to R. Fitts.

<p>The Colonial Ordinance of 1641 presents no rule for apportioning flats to the owners of the adjoining uplands.</p> <p>Neither have the decided cases entirely agreed in furnishing a rule for that purpose.</p> <p>Though there may be cases, in which the rule laid down in Emerson v. Taylor, 9 Greenl. 42, cannot be applied, there has been found no serious difficulty in extending it to the flats in the larger rivers and coves of this State.</p> <p>It seems, that a title to flats may be acquired by an occupation of them by one of the owners of the adjacent lands, if continued fifty years, adverse, exclusive, open and notorious, although commenced without regard to any fixed rule of apportionment.</p> <p>An occupation of flats by one of the owners of the adjacent lands, commenced without regard to any fixed rule of apportionment, and continued under a claim of right for fifty years, with the knowledge of the other owner, may furnish a presumption that the flats had been apportioned by such owners in accordance with such occupation,</p> <p>lienees of stakes or twigs, erected for fish weirs upon flats covered by water, though used for taking fish during only a part of each year, may sufficiently evidence an occupation, with claim of ownership of the flats, upon which such fences are erected.</p>

On Report from Nisi Prius, Howard, J,, presiding. Writ op Entry. Brown conveyed to Martha Leach, one of the defendants, a farm of fifty acres.

<p>In the creation of a trust, no exact form of words is requisite.</p> <p>Lands conveyed to one, but purchased with funds advanced for the purpose' by another, are held by the grantee in trust for the latter.</p> <p>Lands conveyed to one, but purchased with funds belonging jointly to himself and another, are held by the grantee in trust for the other, to the extent of his part of such funds.</p> <p>If part of a debt, secured by mortgage of land, be held in trust, the trust is not dislodged, by a written agreement of the trustee “to account and pay over to the cestui que trust, his proportion of any moneys which may be received upon the debt.</p> <p>Such a trust is assignable, and may be enforced in equity by the assignee.</p> <p>In order to create a trust by the purchase of lands with the funds of another person, such funds must have been advanced and invested at the time of the purchase. If the funds be furnished subsequently to the purchase, no trust arises therefrom.</p> <p>If a person, after having purchased a mortgage debt, receive funds from another person, and contract in writing to pay to him a specified part of the proceeds of the debt when received, and in manner as received, a specific performance of such contract may be enforced at equity, although there may be a remedy at law.</p> <p>Upon a foreclosure of the mortgage, the land is to be treated as a payment upon the mortgage debt, and is held under the same trust as was the debt, and the trustee is compellable to convey the same to the cestui que trust, in proportion to his ownership in the mortgage debt.</p> <p>Where one having, as cestui que trust, the right to compel a conveyance of land to him by his trustee, becomes himself by contract the trustee of another in the same land, he is compellable to convey to Ins cestui que trust, so soon as he shall himself obtain a conveyance.</p> <p>In such case, to avoid circuity, the first trustee may be compelled to convey directly to the last cestui que trust.</p> <p>Such a conveyance by the first trustee will protect him from the claims of his own immediate cestui que trust.</p> <p>Allegations in an answer to a bill in equity are not of themselves evidence, unless responsive to the bill.</p> <p>Of the costs to be awarded in equity suits.</p>

On Report from Nisi Prius, Tenney, J., presiding. Case. The defendant is a deputy sheriff. He took from Lord a yoke of oxen upon writ of replevin in favor of one Miller. Judgment was rendered in favor of Lord, the defendant in that suit, for a return of the oxen, and for damage assessed at $40, and for cost $115,54.

Case, against common carriers, for the loss of a valise and its contents on board the steamboat St. Lawrence, owned and run by the defendants. The general issue was pleaded, with brief statement that there is no such corporation as the Portland Steam Packet Company, with the powers and duties as described in the plaintiff’s writ. The defendants also moved, that the writ be quashed, because it does not describe them as a corporation, or as a company liable ¡to sue and be sued.

<p>On Exceptions from the District Court, Hathaway, J.</p> <p>Manson disclosed that he held a recorded mortgage, made by Henries of a stock of goods, to secure a debt of about $400 ; that the goods were of a value more than sufficient to pay his debt; that, before the service of the writ, he had never taken possession or delivery; that, after the service of the writ, he took actual possession, and his debt has been paid; and that the goods have been since mortgaged by Henries to Bebee & Co.</p> <p>The Judge ruled Manson to be chargeable as trustee, and he excepted.</p> <p>Was the trustee in possession of the goods of the principal defendant, as contemplated by R. S. c. 119, $58?</p> <p>If the person summoned as trustee shall disclose, that, at the time of the service of the process on him, he had “in his possession property not exempted by law from attachment, but that the same was mortgaged, pledged or delivered to him by the principal defendant, to secure the payment of a sum of money due” him, and that the principal defendant has a subsisting right to redeem the same, on payment, or tender of payment of the money due, the Court shall order a delivery of the property to the officer, &c.</p> <p>The right of redeeming was in the principal defendant, at the time of the service of the writ, and the trustee was in possession, or what is the same thing, had the right to immediate possession of the goods, the mortgage having been recorded as provided by R. S. c. 125, $ 32.</p> <p>At common law, a delivery and generally the possession of the property mortgaged were necessary to vest the property in the mortgagee. The above $ 32, made the record of the mortgage a substitute for this. Pickard v. Loio, 15 Maine, 48; Flanders v. Barstow, 18 Maine, 357 : Welch v. Whittemore, 25 Maine, 86; Bullock v. Williams, 16 Pick. 35.</p> <p>The right to the actual possession is tantamount to actual possession. Lane v. Nowell Sf trustee, 15 Maine, 88; Ward v. Lamson Sf trustee, 6 Pick. 358.</p> <p>The possession of the mortgager is the possession of the mortgagee. Noyes v. Sturtevant, 18 Maine, 104.</p> <p>Such a construction should be given to the Acts of the Legislature as will give effect to them. Unless the recording of the mortgage is tantamount to possession, as intended by <§> 58, c. 119, that section cannot aid the creditor in securing his debt. No mortgagee will ever be in actual possession where registration only is necessary for his security, and no attaching creditor will be any better for the enactment. It is hardly probable that the Legislature would have passed an act for the benefit of attaching creditors, as in this case, and immediately make it of no effect, by rendering possession of the property unnecessary for the security of mortgage creditors.</p> <p>What possible injury can arise from the construction, that the possession referred to in Pickard v. Low, and the other cases cited, is the possession intended by the statute ? The trustee could suffer no injury if he used ordinary care, the principal defendant could suffer no injury more than if the goods were absolutely his and attached by ordinary process, and there is no other party to be affected injuriously.</p> <p>Unless this construction obtain, the law becomes a mere protection to fraud.</p>

On Exceptions from the District Court, Hathaway, J. presiding. Case, under R. S. c. 67, 9, to recover for driving the defendants’ logs, which had become so intermixed with those of the plaintiffs’ that they could not be conveniently separated, for the purpose of being driven down the river.

<p>Exceptions or reservations in a deed of conveyance are to be construed most strictly against the grantor and most beneficially for the grantee.</p> <p>F owned a water privilege and dam, by which the wheels of his tannery were worked. He deeded a part of the land, with a right to taire water for machinery from his dam, reserving “ sufficient water at all times to work” the tannery wheels, “ as now used.” — Held, that the water reserved was the quantity, (and no more than the quantity,) actually used by the tannery at the time when the deed was given.</p> <p>Though, the lease of a factory, -which is usually moved by a water power, should not, in express terms, contain a grant of the water power, such grant would result by implication of law.</p> <p>Such grant, thus arising by implication, will not extend beyond the rights possessed by the lessors.</p> <p>If, therefore, the water power was but a part of a larger water power, in which the lessors were co-tenants with other persons, and if the lessees should use more than their lessors’ proportion of it, no right of action against the lessors could arise in favor of the other co-tenants, for such disproportionate use.</p>

<p>Tbe repeal of a statutory provision, giving a lien upon property, defeats the lien remedy, although, at the time of the repeal, the proceedings, prescribed by the statute for enforcing the lien, had been instituted and were rightfully pending in Court.</p> <p>A lien, created by the provision of a statute in favor of a contract-creditor, is but a part of the remedy afforded for collecting the debt. l></p> <p>The repeal of such a provision, is merely a change in the remedy, and does not impair the obligation of the contract.</p>

On Facts agreed. Assumpsit on a note promising to pay ,f2250, in three equal annual payments, with interest to be paid annually. At the end of the first year, the installment which then became payable with interest upon it, was paid. At the same time, the interest for one year on the other two installments was demanded and refused.

<p>Upon the question whether a signature be genuine, evidence as to its resembling the writing of tire party may be given by a witness who has seen him write; and such witness may state his belief as to the genuineness.</p> <p>Upon evidence thus given of a resemblance and of a belief in the genuineness, it is competent for the jury to find a verdict that the signature was genuine.</p> <p>Uor goods belonging to the defendant, but tortiously taken and detained by the plaintiff, an account filed by the defendant in set-off to the plaintiff’s demand cannot be sustained.</p> <p>In a suit by the indorsee of a note against the maker, a note given by the in- * dorser to the defendant cannot be allowed in set-off, if not mentioned in the defendant’s statement of his set-off demands.</p>

<p>Osr Exceptions from the District Court, Hathaway, J.</p> <p>Indictment against the defendant as a common seller of intoxicating liquors.</p> <p>There was evidence tending to show that such liquors belonging to the defendant were sold in his shop, by a clerk in his employ, the defendant having knowledge of such sales, and receiving the pay for the liquors. The clerk was called as a witness by the defendant.</p> <p>The Judge instructed the jury, that if sales of such liquors belonging to the defendant were made in his shop, by a clerk in his employ, the defendant having knowledge of the sales, and receiving pay for the same, the presumption was, that it was done by his direction or consent, unless there be some proof to the contrary; and that he would be equally responsible for the sales, as if made by himself. To that instruction the defendant excepted.</p> <p>The words in the instructions “ receiving pay,” do not mean that he took pay at the time of - sale, but only that it went into his money.</p> <p>In addition to every thing that was proved, one more element was necessary to constitute crime. The respondent might know of the sales, and after the sales might receive the pay for them, and still have disapproved of the sales. The guilt would not depend upon any act after the sales, where the intention was good at the time of sale. All the facts proven therefore might be consistent with innocence.</p> <p>The Judge erred in stating that there was any presumption about it. It was the very point for proof. If there was any presumption, it was one of fact only, which should have been left to the jury. It was their province ; something which should have been left to the jury to decide according to their own convictions. What should therefore have been left to the jury, was decided for them.</p> <p>Then further, the Court was still more in error to add that this was so, unless there was proof to the contrary, and that the respondent would be legally as much responsible for the sales as if made by himself.</p> <p>This was in effect saying that upon the facts proven, he must be found responsible, unless he adduces proof to clear himself,</p> <p>It was as much as to say, that the respondent stands now guilty, and the burthen rests on himself to remove the guilt. State v. Flye, 26 Maine, 312.</p> <p>Again, the clerk was a witness. He could have been interrogated. Presumptions cannot be used when better evidence is at hand to the government.</p>

On Exceptions from Nisi Prius, Tenney, J., presiding. Trover for saw-logs. The material facts appeared to be as follows: — Shaw, one of the defendants, obtained a permit to cut logs on a specified tract of land. He procured the other defendants, Thissell, Emery & Co., to furnish supplies for his lumbering operation, assigning to them the permit for their security.

On Report from Nisi Prius, Siiepley, C. J. presiding. Action of the Case, brought in the name of a husband alone, to recover against a town for an injury sustained by his wife, through a defect in the highway. The Chief Justice being of opinion that such an action was unmaintainable, the plaintiff submitted to a nonsuit, which is to be taken off, if the action, on proof of the facts alleged, is sustainable.

<p>A levy of laud on execution, greater in value, by the sum of fourteen cents, according to the appraisement, than the officer was authorized by his precept to take, is invalid.</p> <p>Por such excess, as there can be no apportionment of the land taken, the levy is wholly void.</p> <p>It seems, that a levy is unsustainable, if the excess in value of the land taken be more than the value of any coin, which by statute is a legal tender.</p>

On Report fom Nisi Prius, Siiepi/ey, G. J., presiding. Action oe Dower against the tenant of the freehold. The controversy related to the sufficiency, though not to the seasonableness, of the supposed demand upon the tenant.

<p>In a process to reverse a judgment, nothing can be assigned for error, which contradicts the record; nor can any evidence, even the deposition of the justice before whom the judgment was recovered, be received to discredit it.</p> <p>Papers and documents, used and filed in a case, if not incorporated into the record, constitute no part of it.</p> <p>The allegations of a justice’s record, in matters within his jurisdiction, are entitled to the same credit, as are allegations contained in the records of the higher tribunals.</p>

On Exceptions from Nisi Prius, Wells, J. presiding. Case for injury sustained by the wife, by being thrown from a wagon through a defect of the highway in Mount Yemon. One Eaton was driving the wagon when the accident occurred. The defendants contended that in his driving, there was a want of the requisite care.

On Exceptions from Nisi Prius, Rice, J., presiding. Indictment, for having in possession at one and the same time, ten counterfeit bank bills, with intent, &c. Many legal points were taken, and much testimony introduced.

On pacts agreed. Debt, brought before a justice of the peace upon a poor debtor’s six months relief bond. The statute of 1848, c. 85, 4, provides that in such suits the “ amount which the plaintiff may recover shall be the real and actual damage which has been sustained by the breach of the conditions of the bond and no more.” The debtor disclosed, but not until a few days after the six months expired. He disclosed, that he had four dollars in money.

<p>On facts agreed.</p> <p>Petition for the partition of real estate.</p> <p>Upon the estate sought to be divided there is a brick factory building for the manufacture of cotton, containing about 1800 spindles, and 50 looms, with other necessary and appropriate machinery for operating the same; the whole being carried by one water wheel about six feet in diameter, with a head and fall of water of about fifteen feet. There is also connected with the factory a machine shop, being a separate building of brick, the machinery in which is carried by a wheel about ten feet in diameter, which is turned by water taken from the factory dam. There is also an upper dam with a small building standing thereon ; and a store and large dwellinghouse, called the boarding house, standing on the premises. Also a small brick building occupied as a counting room, with two other small buildings, and the residue of the land described in the petition is unoccupied.</p> <p>The brick building and factory were erected for the special purpose of a cotton factory, and are fitted with a great variety of machinery suitable, and such as is exclusively used, for manufacturing cotton cloth, but which has not been used for that or any other purpose for the last two or three years. This machinery is in no way attached to or connected with said building, except that the same is set upon a common floor, and is fastened to the floor by screws and other fastenings, and all is propelled by the use of bands from the main water wheel; and the machinery may all be displaced and removed from the building, simply by casting off the bands and removing the fastenings. The factory is operated by the use of one common water wheel — which wheel is its sole motive power. The factory cannot be divided into the several parts prayed for in the petition without destroying the property for the purposes for which it was erected, and for which it has been maintained by the owners. But the factory can be divided as prayed for, without destroying the same, for purposes and uses other than those for which it was erected and has been maintained by the owners.</p> <p>The Court is to enter such judgment as justice requires and the law permits.</p> <p>1st. The property described in the petition is partible under the provisions of It. S. c. 121, § 1, 2, in the same manner it would have been at common law. We regard the case of Hanson Sf al. v. Willard &f ais., 12 Maine, 142, as directly in point and decisive.</p> <p>2d. The cotton factory, including the machinery, is a part of the realty, and would pass by a deed describing it as such, and so may be divided under our statute. Farrar &f al v. Stackpole, 6 Maine, 154.</p> <p>3d. If it should be found inconvenient or prejudicial to the interest of all concerned to divide the cotton factory, it may be set off to one of the tenants in common, under the provisions of 11. S. c. 121, § 25. Dyer v. Lowell, 30 Maine, 217.</p> <p>The property is not divisible. To destroy the use for the designed purposes, is to destroy the property. It is property which can be used only in common. Such is its essential condition. To strip that condition from it, destroys it. In Hanson v. Willard, 3 Fairf. 142, the Court says the property there in question might be divided, although at great inconvenience. The implication is, that property is not divisible, if a destruction of it would follow the partition. Miller v. Miller, 13 Pick. 237. The petitioners’ argument, that the whole factory may be assigned to one of the co-tenants, upon his making compensation in money, does not relieve the case. For the petition asks that it be set off in parts. Division by time is not authorized by the statute. Neither can division be made by the profits. Where the thing and the profit is the same, a division of the profits must be regarded as a division of the thing. 3 Fairf. 146. But this estate is not of that character.</p> <p>The possession of this estate, and the use of it to one party for a limited period, (a month or a year,) and so on to each of the parties, is not a practicable or substantial partition.</p> <p>The processes of manufacturing are so various and complicated, involving such immense outlays and the employment of so many operatives and requiring such persistency in the undertaking, that the business cannot be begun and ended in a limited period, and again repeated at stated intervals.</p>

On Exceptions from Nisi Prius, Rice, J., presiding. Case, against an officer for official misconduct. This action was submitted at a former term, to the determination of a referee, who made a report in the alternative. The report being presented, the presiding Judge ordered the same to be accepted in favor of the plaintiff. To that order the defendant excepted.

On Exceptions from Nisi Prius, Rice, J., presiding. Assumpsit upon a promissory note, alleged to have been made by the defendant to P. S. Forbes or bearer, payable at a subsequent day.

On pacts agreed. Assumpsit. The plaintiff was surety for the defendant upon a promissory note, which became payable in Aug. 1842. The note was sued in Oct. 1843, and judgment was recovered against them jointly by default in April, 1844. The plaintiff after-wards paid a part of the judgment and brings this action for a reimbursement.

On Report from Nisi Prius, Tenney, J., presiding. This suit, which is for money had and received, is the prosecution of an appeal, from a decision of the commissioners of insolvency upon the estate of Asa Pattee, deceased, the commissioners having disallowed the claim. The claim had been assigned, and the appeal is prosecuted by the assignee. The report of the commissioners was made to the Judge of Probate on Dec. 12, 1849.

On Exceptions from the District Court, Rice, J. Action or the Case. Under instructions to the jury, a verdict was rendered for the plaintiff. The defendant, before having offered any written exceptions for the signature of the Judge, moved to have the verdict set aside and a new trial granted; which motion, after a full hearing, was overruled. He thereupon filed exceptions to the instructions given to the jury, and the exceptions were certified by the Judge.

<p>On facts agreed.</p> <p>Replevin for 100 saw-logs.</p> <p>They grew upon the plaintiffs’ land, and were cut and hauled by one Cross, who. in doing it employed Plummer & Chapin to assist him. They accordingly worked for him, furnishing a six-ox team, sleds, rigging, &c. For their wages and for the labor of the team and the use of the sleds and rigging, they brought an action against Cross, and recovered a judgment of $233,66, upon which an execution was issued.</p> <p>One Burns also labored for Cross in cutting and hauling the logs. For that labor, Cross gave his negotiable note to Burns, and upon that note Burns recovered judgment against Cross for $106,32, upon which an execution was issued.</p> <p>Upon the writs in those actions, the officer returned that he had attached the logs. The executions were delivered to this defendant, a deputy sheriff, who seized the logs in question. They were seized before arriving at their place of destination. Whereupon this writ of replevin was brought.</p> <p>The defendant justified under the lien, given by the statute to Plummer & Ghapin and to Burns, for their services in cutting and hauling the logs.</p> <p>It is contended by the plaintiffs, that the statute gave a lien to the laborer only to the extent of his personal services, and that by embracing in their judgment against Gross the amount due for the use of the team, sleds, &c., Plummer & Ghapin have waived their lien in full.</p> <p>True, the statute speaks of “ personal services.” But we submit that the plaintiffs’ construction of those words is all too limited. It would be hardly supposable, that the Legislature intended to furnish security merely for what a man’s own hands have physically done. The statute had a higher purpose. Its object, doubtless, was to give security for all the appliances by which a laborer has benefited the property. Such lumber cannot be got to its “ place of destination” without the aid of teams. Of that condition the Legislature well knew. Their object was to furnish a substantial benefit to the laborer, one reaching to all the services he has rendered, by which the lumber has increased in value.</p> <p>The plaintiffs also insist, that the taking, by Burns, of a negotiable note was a payment and discharge of his lien claim. If such a construction could have obtained, prior to the Act of 1851, amendatory of the lien-statute, the difficulty has been removed by that Act, which provides that “no such action or lien shall be defeated by reason of the plaintiff’s having liquidated the amount due and received a promissory note therefor.” That Act being merely amendatory of the Act of 1848, extends back to all liens, given by the original Act.</p>

On Demurrer. Scire Facias upon a recognizance taken before a justice of the peace. Oyer was asked, and the recognizance was read.

<p>On Report from Nisi Prius, Tenney, J., presiding.</p> <p>Debt on bond, given by the collector of taxes for the year 1844, with sureties, for the faithful collection of the taxes to him committed, and for payment of the same to the treasurer. Plea, performance.</p> <p>To show the admission by the collector that a portion of the taxes which he had collected, yet remained in his hands, the plaintiffs offered a deposition, of one Waterhouse, which was objected to for the reason that the caption was insufficient.</p> <p>The portion of the caption upon which the objection was founded, was the words, “Jan’y 1, 1853, the aforesaid deponent was first sworn according to law, on this first day of January, 1853, to the aforesaid deposition by him subscribed this day.”</p> <p>The objection was overruled, and the deposition received.</p> <p>It was testified by other witnesses, that the bills of assessment of all taxes required by law and by votes of the town to be assessed, with legal warrant, were duly committed to the collector-, and that in 1852 he admitted that he owed the town, on the tax bills, 0138,28, and that he had 0110 of that balance in his hands, which he had offered to pay, and was ready to pay.</p> <p>The case was submitted to the Court, upon the stipulation, that, if the action is maintainable upon the foregoing evidence or so much of it as was legally admissible, the defendants are to be defaulted.</p>

On Report from Nisi Prius, Hathaway, J., presiding. The action had been submitted, by rule of Court, to referees. Their report awarded to the plaintiffs #5290,77, damage.

On Report from Nisi Prius, Hathaway, J., presiding. Debt on a poor debtor’s relief-bond. The bond was taken to procure the debtor’s arrest upon a pluries execution, issued by a justice of the peace.

On Report from Nisi Prius, Tenney, J., presiding. The case came up from the District Court on exceptions by the defendants, and was submitted to the Court for a decision, under admission by the parties, that the facts were as stated in the exceptions.

On Exceptions from Nisi Prius, Tenney, J., presiding. Trespass against a deputy sheriff, for taking the plaintiff’s chattels. The defendant justified the taking by virtue of an execution against one James Millay. The plaintiff introduced evidence tending to prove his ownership and possession of the property. There was no evidence of the possession, or right of possession in the plaintiff, excepting that which tended to show his ownership.

On Exceptions from Nisi Prius, Tenney, J., presiding. Assumpsit, for supplies furnished for one Berry and his wife and children. Berry had a derivative settlement in Brighton. The defence was that, after having become twenty-one years of age, he acquired a settlement by five years continuous residence in Cornville. Upon this question, witnesses were examined on both sides, and there was a conflict in their testimony.

On Report from Nisi Prius, Tenney, J., presiding. Assumpsit, on a promissory note, dated Oct. 22d, 1848, and made to the plaintiff, by Chester Houghton, as principal, and by the other defendants as sureties. A note corresponding with the declaration was offered by the plaintiff, and in connection with the deposition of one Metcalf, was read to the jury.

On Exceptions from Nisi Prius, Rice, J., presiding. The questions for consideration relate to the chargeability of the trustees. They answered respectively that they had no other business relations with the principal defendants than those stated in their disclosures. The Judge ruled, that they were not liable as trustees. To that ruling the plaintiff excepted. The substance of the disclosures is presented in the opinion of the Court.

<p>On Exceptions from the District Court, Rice, J.</p> <p>Assumpsit.</p> <p>The plaintiff was the wife of John Linscott. He died. The defendant is the executor of his will. While he and the heirs were at the mansion house one day, soon after the death, the plaintiff delivered to him $100 in gold. He after-wards claimed that it belonged to the estate, and she brought this action to recover it back. A witness for the plaintiff testified that the defendant said that he received the money of her, and carried it into the room where the heirs were, and said “here is a hundred dollars which your mother-in-law has given to me, which she claims as her own.”</p> <p>A witness for the defendant testified that the plaintiff and defendant came together into the room where the heirs were, bringing the money with them, when she said she would entrust it with the defendant and “abide by the will of the Judge of Probate to decide who should have itand that the “ heirs” agreed to it.</p> <p>Much testimony was introduced by the defendant, from which he urged that the jury should infer that the money belonged, not to the plaintiff, but to the estate.</p> <p>On this evidence, the counsel in the defence contended, as the law of the case, that it was incumbent on the plaintiff to prove affirmatively that the money was her own property, separate from, and irrespective of her husband; that on this point, as the money was found in the house of the husband, occupied by himself, wife and some of the heirs, she had. not such exclusive possession as would lay the burthen of proof on the defendant; that the presumption of law is, that the money belonged to the estate of the husband at the time.</p> <p>But the Judge held otherwise, and instructed the jury that the plaintiff’s possession of the money, claiming it as her own, was prima facie evidence of property in herself; and if not repelled and overcome by the other evidence in the case, entitled her to recover; that having received the money from the widow to keep for her, she was entitled to recover, unless the defendant could show, the burthen of proof being on him, that it was not her property, but belonged to the estate of John Linscott.</p> <p>The verdict was for the plaintiff, and the defendant excepted.</p> <p>Other points of defence were taken, upon which evidence was offered. But neither that evidence nor the ruling upon it need to be stated.</p> <p>The instruction was correct. The evidence all shows that the defendant received the money from the hands of the plaintiff, and the Judge only instructed that that possession was prima facie evidence, and that it was liable to be overcome by other proof. The jury have found that there was • no other evidence sufficient to do so. Every thing was rightfully submitted to the jury, and they have passed upon it, and given a verdict according to the justice of the case.</p>

On Report from the District Court, Rice, J., presiding. Replevin, for a mare, sleigh, harness and buffalo robes. The articles belonged to the plaintiff, and were by him placed in the care of the defendant, who was the keeper of a livery stable in Bath. The mare remained and was boarded at that stable from August, 1849, to April, 1850.

<p>On Exceptions from Nisi Prius, Howard, J., presiding.</p> <p>Process oe Foreign Attachment.</p> <p>Three of the trustees were co-partners in trade, doing business in Bowdoinham in this county, under the firm-name of Baise, Nash & Oo.</p> <p>Two of the trustees were co-partners in trade doing business in the same place under the firm-name of Nash & Tank. Nash was a member of both co-partnerships, and his residence was in the county of Cumberland. He appeared by attorney at the return term of the writ. It was then agreed by the plaintiffs that the trustees might disclose at the next term, February, 1849, as of the return term. At said February term, Nash, by his attorney, filed a declaration that he had no goods, effects or credits of the defendant. At a subsequent term it was ruled that he be discharged with costs. To this ruling the plaintiffs excepted.</p>

On Exceptions from the District Court, Rice, J. Debt, on a poor debtor’s six months relief bond. Plea, non est factum. Brief statement, that the principal obligor had taken the oath .prescribed in the condition of the bond. The case shows that the defendant introduced the certificate of discharge upon the taking of such oath issued in due form by two justices of the peace and quorum, “ selected according to law.” This, if unimpeached, constituted a full defence.

<p>On Report from Nisi Prius, Shepley, C. J., presiding.</p> <p>Case, for erecting a mechanic shop, so near to the plaintiff’s ancient messuage as to obstruct its doors and lights, thereby-reducing its rentable value ; and also for obstructing a way, to which the plaintiff was entitled, for teams and carts, upon the south side of said messuage. The declaration contained two counts.</p> <p>The following chalk sketch will sufficiently exhibit the localities.</p> <p> </p> <p>Until 1841, all the lands in question were owned by William Sprowl. On March 10th of that year, he'sold the lot B, fronting upon the west side of South street, extending from Kennedy’s corner, forty-five feet, “ to a road leading toward the wharfthence running south seventy degrees west, fifty-five feet, to an oak tree, thence south eighty-seven degrees west, &c. back to the first bound.</p> <p>Its north bound on the street is the Kennedy corner, and the south line is at the stone post.</p> <p>Upon this lot the plaintiff erected a large brick store, called in the declaration his ancient messuage.</p> <p>The lot A, called the “ open space,” is owned by the defendant, having come to him by devise from William Sprowl. It was upon this lot, owned by himself, that the defendant built the mechanics’ shop complained of. The shop came within three and a half feet from the plaintiff’s store.</p> <p>The plaintiff claims 1st, that by the operation of the deed from William Sprowl, extending the lot “ to the road leading toward the wharf,” he became entitled to a right of way in that road, and that the defendant, by erecting the shop upon it, invaded that right; —</p> <p>2d, that there had been a dedication of the road .to the public, and that the erection of the shop was a violation of right, and injurious to the plaintiff.</p> <p>There was testimony to prove, and also to disprove, that a road running along on lot A, from South street, toward the wharf, had been used and traveled ; that the road had passed over the whole of the open space, lot A, between the plaintiff’s line and the Ludwig house, except the distance of 18 to 25 feet next to said house ; that for some distance toward the wharf the road had been limited to from 9 to 12 feet. There was testimony tending to prove, that all the lot A had long been used for a landing connected with the wharf, and that wood and lumber were piled upon it in places during all seasons of the year, for which the owner received wharfage and landage ; also, to prove that the land, on which the shop stands, was covered with wood piled there when William Sprowl conveyed in 1841, the piles extending nearly to South street; also testimony tending to prove, and to disprove, that the defendant, and the former owner of lot A, had, by their acts and declarations, dedicated the land to the public as a way or road.</p> <p>The defendant contended that the deed, under which the plaintiff holds, did not, by any implication, convey any right of way by using the words, “to a road,” especially because, not an inch beyond that one point of contact, the stone post, was the road made the boundary of the lot conveyed.</p> <p>The defendant also contended that the open space was a landing connected with his wharf and making part of the wharf lot, for the piling of wood, bark, timber and other articles designed to be taken to vessels lying at the wharf, and that he received pay for the use as a landing place ; that the space not occupied by the piles was a mere private way for the accommodation of his landing place and wharf, whereby he made a profit to himself, and was not a public road or thoroughfare.</p> <p>The defendant also contended, that if the plaintiff, under the deed from William Sprowl, took any right of way in the wharf road, it was the road as used when that deed was given; but if not so, still the plaintiff could not prescribe in what direction it should run, after starting from the stone post, for the deed did not bound him by the road, but by a specific course, which might or might not coincide with the road; and that, as there always, to this hour, has been a sufficient road kept open, starting from the stone post, passing south of the shop, the plaintiff cannot complain that the shop infringed his right of way.</p> <p>Several requests were made for instructions to the jury, among which the 2d, Bd, 4th, 6th, 8th and 10th were as follows; viz: —</p> <p>2, that the word “ to” in the deed is a word of exclusion, unless by necessary implication it was used in a different sense ; that the terms found in a deed are to be construed in reference to the apparent purpose for which they were employed ; that, in this case, the words “ 45 feet to a road leading towards the wharf,” being used for the purpose of description of the lot, the word “ road” is employed as a monument, and the terms “ to a road” are regarded terms of exclusion and so nothing passed, but what is included within the boundaries expressed in the deed; that this construction is particularly applicable here, provided the jury find that the road leading towards the wharf was not adjoining or contiguous to the southern line of the plaintiff’s lot, but distant therefrom, after leaving the stone post, so that the second course in Sprowl’s deed did not bound the south side of plaintiff’s lot by said road; and that under this legal construction, and such a finding, this plaintiff would have no cause of action against the defendant, for placing a building on his own land, west from the stone post, and south of the line from the post to the oak tree.</p> <p>In support of the doctrine of this request, the counsel cited 17 Mass. 447; 14 Mass. 55; 13 Maine, 201; 11 Pick. 193. He also urged that the case at bar was distinguishable from those of Van O’Linda v. Lothrop, 21 Pick. 292, and Sutherland v. Jackson, 32 Maine, 80, because in those cases the parties were bounded by streets in one case and by the plan of a street in the other; there being in this case neither of such boundaries.</p> <p>3, that the plaintiff’s right to a road over the defendant’s land accrues to him, if at all, by way of estoppel, the defendant being estopped by the terms of the deed “ to a road” to deny the existence of a road there; but that estoppels are construed strictly, and never enlarged or extended by implication ; and that, inasmuch as the deed, at most, calls for a road only at the end, of the first line, (at the stone post,) if the jury find that there existed, at the time complained of in the plaintiff’s writ, at that place, the same road leading towards the wharf, unobstructed by the defendant, then the demand of the estoppel was satisfied, and Cole could claim no more. 4 Kent’s Comm. 261, and notes.</p> <p>4, that the word road in the deed denotes simply a right of way over the grantor’s other lands. A right to pass and repass over it for the same purposes for which it was used by the grantor at the time of the conveyance ; that the language, u to a road leading towards the wharf” sufficiently indicates that it was a wharf road, and such a wharf road as existed at the time of the conveyance, but that it is left for the jury to find the width, character and uses of the road, and its actual location upon the surface of the earth, after leaving the stone post; that if the jury find that “ the road loading towards the wharf,” at the time of the conveyance of 1841, was a well known road, well defined and clearly marked on the surface of the earth, that in leaving South street it proceeded from the place of the stone post, by a southerly sloping direction, passing wholly to the south of tho place of the defendant’s shop, towards the wharf, and that the shop is not in said road or any part of it; and that the same road, over the same general locality, has been continued substantially as at the time of the conveyances, repaired and amended from time to time, as necessity and convenience required, and is as easy of access, as safe, suitable and convenient to pass and repass as it was then, this action for the obstruction, by defendant’s shop, of “ the road leading towards the wharf ” cannot be maintained. Allans v. Boardman ó/ als. 2 Mete. 457; same parties, 20 Pick. 291; Boynton v. Rees, 8 Pick. 329; Pierre y. Fernald, 26 Maine, 436.</p> <p>6, that, if “the road leading towards the wharf” was not, at the time of the conveyance, adjoining or contiguous to the south line of the plaintiff’s lot, from the stone post to the “ oak tree,” but on leaving the point of the stone post, the road diverged to the south and distant from said south line, the deed would not confer on the plaintiff “ the right” to pass and repass with teams and carts of the plaintiff, on and around the south side of the plaintiff’s brick building as alleged in his writ.</p> <p>8, that the right claimed by the plaintiff cannot have been acquired by dedication, unless it has been proved by evidence of acts on the part of the owner of the soil, that defendant, or Wm. Sprowl, understandingly and intentionally dedicated such right of way; and that evidence of a dedication may be rebutted by other acts on the part of defendant or Wm. Sprowl, indicating, that they only intended to permit persons to pass there, over their land, when not occupied for other purposes, and not to dedicate a right of way to the public; and that the use and occupancy, bjr themselves, of the land, or by others under them, for a compensation, by covering it with piles of wood and plank, and continuing the same for long periods of time, occupying at their pleasure, and for their own convenience, would be acts going to rebut and disprove a dedication to the public, or to the plaintiff and those under whom he claims.</p> <p>10, that the question is not how wide the jury might think it best and most convenient to have a road, but their inquiry should be what was in fact the width of this road opposite the plaintiff’s lot at the time of the conveyance of March 10, 1841, and that the defendant is not required to furnish a wider road than the one existing and in general use at and about the time of that conveyance.</p> <p>These requested instructions were refused.</p> <p>The defendant then further requested instruction to the jury, that, to constitute a dedication, it is necessary, not only to show by acts and declarations the intention of the owner to give up his lands to public use, but there must have been an acceptance of the dedication by the public; and that the dedication and acceptance must have been before March 10, 1841, or before the shop was put on the land.</p> <p>This instruction was given by the Judge, with the differ- - ence, that he used the words acts or declarations instead of acts and declarations, and also added that an acceptance by the public might be inferred from the public use of the land for a road or way.</p> <p>In support of the defendant’s views upon the matter of dedication, he cited the following authorities. — 3 Kent’s Com. 7th Ed. p. 450 — 3, title Easements, and notes and cases cited in the notes; Post v. Pearsall, 22 Wend. 425, 482; Pearsall v. Post, 20 Wend. 119; The matter of the thirty-second street, 19 Wend. 128; 2 Greonl. Ev. p. 622 — 3—4— 5, § 662 and 664, and authorities cited n note 1 on page 623, and in note 1 on page 625 ; Hobbs v. Lowell, 19 Pick. 405-6; Lamed v. Lamed, 11 Mete. 421, [usually cited as opposed to defendant’s doctrine, — it is not so;] Munsen v. Hungerford, 6 Barb. 265, 272 and 3; Wright v. Tuhey, 3 Cush. 290.</p> <p>The jury were instructed, that the plaintiff, by a correct construction of the conveyances under which he claimed title, was bounded upon a road at the corner of his lot upon South street adjoining the open land; that the road referred to in those conveyances must be considered as commencing on South street, there adjoining the plaintiff’s land; that the road from that point towards the wharf was not determined by those conveyances or by the law, but was to be defined and established by the testimony; that they would, from the testimony, ascertain and determine where the road referred to in the conveyances had been used and established before those conveyances were made; that if they should be satisfied, that the place where the defendant’s building has been erected, was covered by wood piled upon it at the time of the conveyance, dated March 10, 1841, that fact would not necessarily determine, that the road had not before that time been established there, and been encumbered by the wood; that owners of land might dedicate it by their acts or declarations to the public use for a way or road; that it was not necessary that it should have heen used as a road for any particular time to make it an effectual dedication, if satisfied that it was the intention of the owners to make such an appropriation of the land, and that they had done it, and that it had been commonly used for that purpose. There were other instructions, not presented in the Judge’s report or necessary to be here considered.</p> <p>The verdict was for the plaintiff, and is to be set aside, and a new trial granted, “ if the reported instructions or refusals to instruct were erroneous.”</p> <p>The plaintiff claimed that the recovery should embrace the damage he had sustained up to the time of the trial. The Judge instructed the jury that, if the verdict should be for the plaintiff, it should only embrace the damage sustained up to the date of the writ. The verdict was for the plaintiff, the damage being assessed at $53. To this instruction the plaintiff excepted.</p>

<p>On pacts agreed.</p> <p>Assumpsit for supplies and outfits for the little schooner Boxer upon a fishing voyage. She was owned, one third by Reed and the residue by John Hodgdon and Jackson Hodgdon, the other defendants. Reed let his part, for six months, to John Hodgdon, under a written contract by which the hirer was to pay a stipulated price, and to use and sail the vessel in the fishing business without any expense to Reed “ upon the hull, sails, rigging, cables, anchors, boats, or any other expense whatever.” To this contract the parties respectively bound themselves under a penalty of one hundred dollars.</p> <p>Jackson then took command of the vessel, and he and John sent her on a fishing voyage. In these proceedings Reed took no part.</p> <p>Jackson and John purchased articles of the plaintiff on credit, to the amount of $514,19. Of this amount, $76 were necessaries, and were applied as such, for the vessel; $87 were advances to the crew; the residue was for outfits, including salt. In making these purchases, John represented himself to he agent for the vessel and owners, and gave to the plaintiff the follorving paper, signed by himself and Jackson. “ This is to certify that we agree to be accountable for the owners for outfits for schooner Boxer and crew, the coming season.”</p> <p>The plaintiff charged the account to “ schooner Boxer and owners.” He subsequently received $35 and $215, from John Hodgdon, which he credited upon the account.</p> <p>John Hodgdon having deceased, his name has been stricken from the writ. Jackson has been defaulted.</p> <p>The case was submitted to the Court; and a discontinuance as to Reed is to be entered with costs, if ho is not liable.</p> <p>Except for the letting of the vessel by Reed, he would he clearly liable to the plaintiff. But of that letting the plaintiff had no knowledge. The decisions that a charterer is pro hac vice to be considered as the owner, do not apply in this case. And such decisions have been sufficiently extended. The better rule would be that, when one of two innocent persons must suffer, the party who occasions the loss, should bo answerable for its consequences. Those cases have usually occurred when the whole vessel had been chartered, and, perhaps, invariably when the possession was in some person not named in the register as owner. In such cases, there may be some reason for showing that, in fact, an agency exists, before founding a liability upon it; and that the master is in fact an agent of the owner, before his acts can charge the owner. So when a stranger to the title has the possession and control of a vessel, it is necessary to show that he is in fact agent of the owners, before they can be called on to fulfill his engagements relative to the vessel. This is the utmost extent to which the doctrine has as yet been extended.</p> <p>In' the case at bar all the defendants are owners of the vessel and were so at the time of the furnishing these supplies, and being so, each is deemed the agent of the others, as to the ordinary repairs, employment and business of the ship, in the absence of any known dissent.” Story’s Agency, <§> 40. They are thus deemed agents because they are part owners and are also genera] agents for the particular vessel. Each part owner then holds out to the world that they are agents, and the law therefore compels them to guaranty the acts of each. Whether they have or not exceeded their private instructions, can have no operation on third persons without notice. Story on Agency, § 298.</p> <p>The owner is bound' by the contracts of the master, notwithstanding any private agreement. Part owners are agents by law. Any one may avoid liability by showing that he derived no benefit of the ship, and had no possession of her. It is however no defence that the particular voyage was unauthorized or expressly forbidden. Hardy v. Sprowl, 29 Maine, 259.</p> <p>In the case at bar, Jackson and John Hodgdon did the trading. John represented himself as agent for the vessel and owners, as well as part owner; in that capacity, together with Jackson, he gave on the 10th of April, a certificate that the owners would be accountable for the outfits of the schooner. Both of them repudiated the agreement, and this they had a right to do, though under liability to the forfeiture of $ 100 as a penalty. By that repudiation, the contract of letting became a nullity, and Reed, therefore, became accountable as before. In Packard v. Sloop Louisa, 2 Wood-bury & Minot, 55, Justice Woodbury says, — “ There must have been no knowledge of the facts, or the repairs be very durable or the charter must have contemplated it, if the owners are liable for repairs when the master has hired the vessel, and orders them.” This is the sound and correct doctrine. It accords with the views and understanding of commercial men and the former universal custom.</p> <p>This principle, applied to this case, must do substantial justice to the parties.</p> <p>Further, there was no such letting as to exonerate Reed, upon any of the decisions on which he relies. He never relinquished control of the vessel, for he directed in what business she should be employed. He insisted and obtained a stipulation, that she should go into the fishing business only. The right in the hirer to direct the voyage, has been much relied upon in the decisions. In Lyman v. Redman, 23 Maine, 295, it is said “ It is the entire control and direction of the vessel, (by the hirer,) and the surrender by the owners, of all power over her, for the time being,” which will exonerate them. Reed relied on Hodgdon’s indemnity, not on any exemption by the rules of law.</p>

<p>Ror materials used in the repair of a vessel, which had been let on hire for a voyage or for a stipulated time, the general owner is not liable, provided such materials are procured and applied to the vessel by the hirer under a charter party by which he agreed to make the repairs in payment for the hire.</p> <p>The rule is the same though the contract for such letting and reparing be by parole, and though it be unknown to the material-man, and although the repair be of a permanent character.</p>

On Exceptions from Nisi Prius, Rice, J., presiding. Assumpsit, commenced in May, 1850, on account annexed, for medical services rendered by the plaintiff’s intestate. The items charged commenced in 1815 and extended to September, 1843. Plea, Limitation. The defendant seasonably filed an account in set-off, consisting of charges for services and articles, rendered and furnished in 1844 and 1845.

On Exceptions from Nisi Prius, Rice J., presiding. Trespass quare clausum, for cutting timber on lot No. 18. The defendant by brief statement pleaded title in himself, setting up no claim to betterments. The plaintiff introduced sundry deeds to establish title in himself. Evidence was introduced by the defendant tending to show that he, and those under whom he claims, had occupied a considerable part of the lot, and made improvements upon it.

<p>On facts agreed.</p> <p>Assumpsit by the indorsee of a note, made in 1838, by the defendants, Abraham Andrews & Stephen Andrews, as co-partners. In 1847, Stephen Andrews paid $25, upon the note, which was subsequently indorsed to the plaintiff.</p>

On Report from Nisi Prius, Wells, J., presiding. Assumpsit, for supporting an illegitimate pauper child whose mother, at the time of its birth, March 8, 1831, resided and had a legal settlement in the town of Berlin. In the fall of the same year, the mother, with the child, removed to Phillips, and continued to reside there until 1847 or 1848.

On Exceptions from Nisi Prius, Wells, J., presiding. Trespass against the sheriff, for the act of his deputy ill attaching a stock of goods on June 13, 1851. The officer justified the attachment of the goods as the property of one Charles W. Boothby, against whom he held several writs for service. The plaintiff introduced evidence to show, that he purchased the goods of Boothby on June 2, 1851.

On Exceptions from Nisi Prius, Wells, J., presiding. Assumpsit by the indorsee against the alleged maker of a negotiable note, indorsed by the payee “without recourse.’’’’ The signature of the defendant was denied. To prove the signature, the plaintiff released the indorser and offered him as a witness. The defendant objected to him, as being inadmissible on the ground of public policy. He was however admitted, and the defendant excepted.

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Complaint before a municipal court. The case came to this Court by appeal. The complaint charged that the defendant willfully disturbed a private school, kept in a district schoolhouse, by one Lambert, for instructing in the art of writing.

On Exceptions from Nisi Prius, Howard, J., presiding. Assumpsit for some patented machinery, put by the plaintiffs into the defendant’s mill. The defence was, that the defendant had never accepted the machinery, and that, in fact, it was of no value. After the introduction and examination by the plaintiffs of many witnesses, the defendant moved for a nonsuit, which the Judge declined to order.

On Report from the District Court, Oole, J. Assumpsit. A house, built upon land owned by a third person, was occupied by the defendant. While he was so occupying, it was sold upon an execution against him, in 1847, and with his knowledge, was purchased by the plaintiff. The defendant continued to occupy it, refusing to pay rent to the plaintiff, and alleging that the ownership was in one Sweetser.

On Exceptions from Nisi Prhis, Wells J., presiding. Trover for a pair of steers. The plaintiff had the steers in a pasture by the road side. The defendant’s drove of cattle passed along the road, and the plaintiff’s steers were soon afterwards missed. There was evidence tending to show, that they had gotten into the drove. The defendant requested instruction to the jury, that in order to recover for them, the plaintiff must prove a conversion.

On Report from Nisi Prius, Wells, J., presiding. Indictment found at the Oct. term, 1852, for the crime of adultery. It charges that the defendant, at Avon, “ on the 25th day of March, 1851, did commit the crime of adultery with one Emeline Whitehouse, the wife of one Solomon H. Whitehouse, she, the said Emeline Whitehouse, being a married woman, and the lawful wife of him the said Solomon II.

On Report from Nisi Prius, Wells, presiding. Trespass on land in Farsonsfield. On May 24, 1816, one Whitten purchased of Joseph Blazo a lot of land, situated on the north side of the north road, and containing an acre and a half. Whitten’s house, store and stable were placed upon that lot. His barn and shed were on the south side of the road, upon land which he purchased of John Drown.

On Report from Nisi Prius, Rice, J., presiding. Complaint. Forcible Entry, &c. In October, 1843, the complainant, by a written contract, let a farm for five years to the respondent, whose residence was in Pittston, upon condition that the lessee should, by a specified day, pay to the lessor a previously existing debt, and should also pay, annually, a stipulated rent, and the public laxes.

On Report from Nisi Prius, Rice, J. presiding. Entry. The demandant conveyed a farm, lot No. 45, to the tenant, who at the same time re-conveyed it in mortgage.

<p>The payee of a note, after haying indorsed and negotiated it, waives demand and notice, by agreeing with the maker to pay it and take it back into his own hands.</p> <p>Such an agreement, though made with the maker of the note, enures to the benefit of the indorsee, in an action against the indorser.</p>

On Exceptions from Nisi Prius, Rice, J., presiding. [Memo. — The Act of J851, c. 211, entitled an “Act for the suppression of drinking houses and tippling shops,” 4, provides that, on a second conviction for selling any spirituous or intoxicating liquor, the offender shall forfeit twenty dollars with costs of prosecution, & § 5, provides that such forfeiture may be recovered before a justice of the peace or Judge of a Municipal or Police Court.

On Exceptions from Nisi Prius, Rice, J. presiding. Assumpsit. The questions arose upon the chargeableness of the trustees. They disclosed that they had insured a house for the principal defendant, and had been notified that it was burnt during the life time of the policy, and that they had declined to pay the loss, on the ground that it was occasioned by design or gross negligence, on the part of the insured.

On Report from Nisi Prius. Replevin for a quantity of pine boards, sawed from logs cut on a tract of land in Canada, and hauled into Round pond, on the north branch of Dead river in this State. One Larry obtained from the owners of the tract a permit to cut and haul the logs. One Atkinson testified that he saw Larry at the pond, where the logs were lying, and that Larry claimed them, and offered to sell them.

On Exceptions from Nisi Prius, Rice, J., presiding. Indictment for maintaining a part of a building upon “ a common highway and public street” in Hallowell, alleged to have been laid out in the year 1836.

On Exceptions from Nisi Prius, Rice, J. presiding. Case for overflowing a public road, which the plaintiffs were bound to keep in repair. The declaration charged that the injury was occasioned by a dam which the defendant had erected at the foot of the pond, upon the margin of which the road lay. The ad damnum was alleged at $500.

On Facts agreed. Debt on a judgment, alleged to have been rendered by the Court of County Commissioners for $2500. The defendants located their rail road across the land of the plaintiff, who applied to the County Commissioners for an appraisement of his damages. The Commissioners awarded therefor the sum of $2500, to be paid by the defendants, and the award was accepted and recorded.

<p>The affixing of a seal, though it be not mentioned in the instrument, constitutes a deed.</p> <p>In an action of covenant broken, an omission to allege in the declaration, that the instrument declared upon was under seal, is amendable.</p> <p>It is a principle of law that the sealing of a contract furnishes of itself sufficient evidence of a consideration, although no legal consideration is stated or recognized in the contract itself.</p> <p>A seal has the effect to overcome and control statements, expressly made in the contract itself, that there was no legal consideration.</p> <p>A joint covenant by two or more persons, that they will not do a specified act, which it was lawful for either of them to do alone, is broken whenever the act is done by either of them.</p> <p>One, holding a guaranty against the arrest of his person, can, after being arrested, recover upon the guaranty none of the costs or expenses, arising subsequently to the arrest. Howakd, J. dissenting.</p> <p>Such an one, after having given the poor debtor’s relief bond to procure his release from such an arrest, does not act prematurely in commencing an immediate suit upon the guaranty.</p>

On Exceptions from Nisi Prius, Rice, J., presiding. Replevin of a person. The writ required the officer to replevy “ Harriet M. Richardson, who sues this action in the name of Nancy Farnsworth.” Harriet M. Richardson is a child, under the age of four years, and is the daughter of the defendant and grand daughter of Mrs. Farnsworth, in whose name this suit is brought. By virtue of the writ the child was taken from its father and delivered to its grandmother.

Ox Exceptions from Nisi Prius, Rice, J., presiding. Case, charging that the defendant maliciously placed, and for one week kept a pile of animal manure so near to the plaintiff’s well as to render the water unfit for use.

Assumpsit, against the indorser of a promissory note. The defence rested upon the following statement of facts. The plaintiff’s intestate recovered judgment against the makers for $711,00. They were arrested on the execution, and each gave a poor debtor’s six months’ relief bond. One of them, at the time of making their disclosures, being the owner of a mill, mortgaged it to secure the debt; whereupon the creditor canceled and gave up both the relief bonds.

<p>On Facts agreed.</p> <p>Debt upon an award.</p> <p>The defendant’s intestate, Polly Allen, was plaintiff in a suit pending in the District Court against this defendant. The parties referred the claim made in that suit, together with all other demands, by a written common law submission, to the determination of arbitrators.</p> <p>The arbitrators met the parties and, for their own convenience, adjourned the hearing to a subsequent day. Polly Allen then transferred all her right and interest in the demand to one Ira Thing. Afterwards, before the arrival of the day to which the hearing was adjourned, she died.</p> <p>The plaintiff was appointed administrator on July 8. After that appointment, the arbitrators issued new notices directed to Polly Allen and to the defendant, for a hearing on the 3d of August, on which day the defendant and also this plaintiff attended. The defendant filed a plea, protesting that the death of Polly Allen had annulled the jurisdiction of the arbitrators. They however proceeded to hear the cause, and made an award in favor of Polly Allen, being the award upon which this action is brought, for the benefit of Ira Thing.</p> <p>It does not appear, that, upon that hearing, this plaintiff took any part, nor was his name used by the arbitrators in any part of their proceedings.</p> <p>Upon these facts the cause was submitted to the Court for adjudication.</p> <p>The submission was at common law ; no bonds were given between the parties, and the only remedy is by action on the award. Tyler v. Dyer, 13 Maine, 41; North Yarmouth v. Cumberland, 6 Maine, 21.</p> <p>The award will be sustained, unless there was gross partiality, corruption or evident excess of power on the part of the arbitrators, of which no pretence is even suggested. Morgan v. Mather, 2 Yes. 15 ; Barlow v. Todd, 3 Johns. 363; Yarmouth v. Cumberland, 6 Maine, 21; Tyler v. Dyer, 13 Maine, 41; Dean v. Coffin, 17 Maine, 52.</p> <p>The case distinctly finds all the facts necessary to the maintenance of an action upon the award.</p> <p>As the submission contained no stipulation that it should survive, it was revoked or annulled by the death of Polly Allen. Kinne’s Law Compendium, Jan. No. 1845, p. 11; Bailey v. Stewart, 3 Watts & Serg. 460; Story’s PI. Tit. Pleas in bar, 167; 2 Barnwell & Creswell, 345.</p>

On Exceptions from Nisi Prius, Wells, J., presiding. The suit was originally against Jacob M. Berry. After his decease, the defendants, being cited in as his administrators, appeared and took upon themselves the defence of the suit. At the trial, they offered the testimony of one Sands, who, being objected to for interest, was excluded. He thereupon produced a release, executed by James Berry, one of the administrators.

<p>To the validity of an award, founded upon a common law submission to three persons, upon a stipulation to abide the determination of any two of them, it is essential that all three be present at the hearing of the parties.</p> <p>That all were thus present, is sufficiently evidenced by a statement of that fact contained in the award, although it be signed by two only.</p> <p>A provision, in a submission, that the award should be “ made and published in writing,” does not require a written notice to the parties, that such an award, subject to their examination, has been made.</p> <p>Such a provision only requires that the referees make an award in writing, and give to the parties an opportunity to examine it.</p> <p>An award, when duly made and signed, and its contents made known to the parties, fixes their rights; and cannot rightfully be altered, recalled or withheld by the referees.</p> <p>In deciding whether, in an award, the requirements upon the respective parties were designed to be dependent upon each other, the Court will take into account what would most contribute to the safety of each parly.</p> <p>When, in an award, one of the parties is required to pay money unconditionally, ho is, upon publication of the award, liable to pay without any demand.</p>

On Facts agreed. Debt on a recognizance for debt for $13,39, signed and sealed by James Kimball, and brought against this defendant as his executor. Plea, that this defendant was never executor. In 1849, Kimball, (whose death occurred in 1852,) owned a yoke of oxen, and mortgaged them to secure to one Tilton a note of $15,00. By the terms of the mortgage, Kimball was under no obligation to pay till after a demand.

<p>By R. S. c. 12S, § 37, liens for erecting or repairing buildings extended only to contracts made by the owners or mortgagers of land or by persons who had contracted with them.</p> <p>An obligee in a bond for the conveyance oí land cannot subject it to a lion for such a cause.</p> <p>A lieu right for sueh a cause is lost, unless the land be attached within ninety days from the pay-day.</p> <p>It is also lost, if the creditor, in talcing his judgment, include any non-lion claims.</p> <p>The owner of land may expose it to a lien-claim in iavor of a person, who may make erections thereon, pursuant to a sub-contract between himself and the principal contractor, whom the owner had employed to do the work.</p> <p>In such a case, the sub-contractor may perfect his lien by levying the land under the judgment which he may have recovered against the principal contractor.</p> <p>But in a subsequent suit, involving title to the land, such owner is not to be considered as a party or privy to that judgment, and is not estopped by it, or by any allegations in the writ upon which it was obtained, to show that no lien right had existed.</p>

On Pacts agreed. Assumpsit, for the plaintiff’s wages as a sailor on board the schooner Mary. The defendant owned the schooner, arid let her to one Partridge the master, upon a contract that Partridge was to have the use and control of her; to victual and man her at his own expense ; to employ her as he should choose ; and to pay the plaintiff one half her earnings, deducting half of port charges.

Assumpsit. Certain, persons, among whom was the plaintiff, stipulated with each other under their hands and seals, Jan. 15, 1849, to form an association for trading and mining in California, called the Kennebec Mining and Trading Company. They adopted a constitution on Jan. 29, 1849. By it the capital stock was divided into eighty shares, each subscriber to have one share for every five hundred dollars by him subscribed.

<p>Upon a bond conditioned to pay an outstanding mortgage upon land purchased by the obligee, the right of action accrues at the expiration of a reasonable time after the mortgagee would have been compellable to receive payment of the mortgage.</p> <p>Upon a bond conditioned to save harmless from such a mortgage, no right of action accrues until the obligee has been subjected to some injury.</p> <p>Upon such a bond, a liability to loss, if attended with inconvenience to the obligee, constitutes a breach, and gives an immediate right of action.</p> <p>In a suit upon such a bond, commenced after a breach, the damage occurring during its pendency may be included in the judgment.</p> <p>When, in such a ease, tire conditional judgment upon the mortgage has been recovered against one to whom the obligee had, without covenants of warranty, conveyed a part of the land, and the obligee has paid the amount of the judgment; Held, that, (as such payment lifted the mortgage from his own part of the land as well as from that of his grantee,) he may, in a suit upon the bond, recover for the amount due on the mortgage; but not for the cost in that judgment, the payment of the same having been voluntary.</p> <p>For necessary services rendered and expenses paid in defending a suit, brought upon such mortgage against the obligee, he is entitled to recover compensation in bis suit upon the bond.</p>

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Case, for slanderous words, charging the crime of perjury. The defendant by brief statement, after averring that the plaintiff had been a witness for one Benj.

<p>On Exceptions from Nisi Prius, Shepley, C. J., presiding.</p> <p>Case.</p> <p>The route of the defendants’ rail road crossed a small saltwater creek, in which the tide ebbed and flowed. Across the creek they placed an embankment of earth, having in it a culvert for the passage of water.</p> <p>On the stream, three fourths of a mile below the embankment, were mills owned by the plaintiff, which had been driven for more than thirty years by the water of the stream, into which the creek emptied itself.</p> <p>[Memo. —An Act passed in 1845, in addition to the Act incorporating the defendants, section 2, authorized the company to erect, for the sole and exclusive travel on their rail road, “ a bridge or causeway,” across any navigable rivers or streams or tide waters ; Provided said bridge or causeway shall be so constructed as not to obstruct or impede the navigation of said waters.</p> <p>An Act was passed in 1844, to incorporate the Bath and Portland Rail Road Company. Its fifteenth section authorized the erect :on of bridges across any tide waters, navigable rivers or streams, provided that the same should be “so constructed as not to prevent the navigating said waters, and said corpora-tors shall be liable for all damages, sustained by individuals in consequence of unreasonable detention.</p> <p>An Act of 1846, additional to the Act incorporating the defendants' company, gave to them “ the same power to construct bridges and causeways across tide waters,” and “ with the same conditions and restrictions, as are granted to the Bath and Portland Rail Road Company by the fifteenth section of the Act incorporating said company.”]</p> <p>The plaintiff introduced evidence, tending to show that the culvert was badly constructed, and that the floor of it was not laid sufficiently deep, for which reason the water was detained by the embankment from coming, as it had been used to do, into the plaintiff’s mill-pond; and his logs were unreasonably detained in the creek above the embankment, by the difficulty of getting them through the culvert.</p> <p>To recover for these injuries, this action is brought.</p> <p>The Judge directed a nonsuit, to which the plaintiff excepted.</p> <p>That the plaintiff has sustained serious damages by the embankment, is not controverted. It is one for which he is entitled to compensation. The question then is as to the form of the process to obtain that compensation.</p> <p>It is not obtainable by any proceeding in the county commissioners’ court. The claims coming within their juridiction, are limited to the owners of land or of building materials, taken by the corporation. But we have no complaint to make for land or any other property taken by them. The remedy, then, must be by action at law, and we are therefore recti in curia.</p> <p>And here, at the outset, we admit, that if the Legislature have, by constitutional authority, granted to the defendants the right to do the acts, by which we have been injured, and to do them in the mode they have pursued, we have -no case. But we do not seek redress for acts so done. Our claim is for acts unauthorized, and therefore unlawful. We contend, that the obstruction of the tide waters, boatable and floatable, was unlawful, and that for the losses which the plaintiff suffered by such obstruction, he is entitled to recover.</p> <p>1. We claim for injury sustained from the impediments to getting our logs down the creek from the place where we had deposited them before the embankment was made. In that creek we had a right of passage for lumber. It was subject to servitude for the public use, for boating, rafting and floating. Brown v. Chad,bourne, 31 Maine, 9.</p> <p>But that right was incumbered by the defendants’ embankment.</p> <p>The Legislature did not authorize such an obstruction. They gave no permission to cross tide waters, except upon bridges. The defendants therefore transcended their authority in erecting the causeway, the embankment.</p> <p>2. We claim for a diminution of our water power. The erection by the defendants kept back a part of the -water from our pond, as the evidence fully proved. To the full flow of that water we had a right.</p> <p>If the creek is not to be viewed as a navigable stream, we had the right to the water by ft. S. c. 126, § 1, giving the right to flow for mill purposes.</p> <p>If it be a navigable stream, our right to it was perfected by prescription. The fact that it is a navigable stream does not prevent the acquisition of a right by long user. Our occupation for more than twenty years has ripened into a right to the full use of the water, a right which cannot be divested, even by the Legislature, without compensation.</p> <p>But it has been said, in defence, that our dam, being upon navigable tide water, is in violation of public right, and that therefore, as against a third party, we could acquire no right. But such is not the law. If the maintenance of the dam is wrongful, the sovereign power only has a right to complain, except in cases of injury sustained by individuals. Low v. Knowlton, 26 Maine, 128; Gerrish v. Union Wharf, 26 Maine, 384; Borden v. Vincent, 24 Pick. 301; Simpson v. Seavy, 8 Greenl. 138.</p> <p>But further, the broad ground is taken, in defence, that the erection of the causeway was authorized by the additional Act of 1846. By a fair construction, however, that Act authorizes no erection but bridges over tide waters. The defendants have, nevertheless, placed a permanent embankment across the stream. It was that unlawful structure which occasioned so much injury to the plaintiff; and for that injury he here seeks redress.</p> <p>referred to the statute provisions of 1844 and 1845, above recited, to educe from them an authority to erect the embankment, and then proceeded; — The plaintiff’s mills and dam are upon a navigable stream of tide waters. Such a stream belongs to the ■ public, and is subject to the control of the sovereign power. Berry v. Carle, 3 Greenl. 269 j Spring v. Russell Sp al. 7 Greenl. on p. 290; Cutler v. Mill Dam Co. 20 Maine, 356; Low v. Knowlton, 26 Maine, 128; Brown v. Chadbourne, 31 Maine, 9, where the cases are collected. — Also Davidson v. Boston Sp Maine R. R. 3 Cush. 105, which is directly in point. See clause 4, opinion of the Court, Munson v. Rungerford, 6 Barbour’s S. C. R. 268, 269, and cases cited. See remarks of Taney, C. J. in Pennsylvania v. Wheeling Bridge, 13 How. 582, as to the rules relating to navigable waters; Charles-town v. Co. Commissioners of Middlesex, 3 Met. 202.</p> <p>It is not admitted that, in navigable tide waters, a prescriptive right can be acquired. Nullum tempus occurrit regi..</p> <p>The defendants, then, have done no more than they were authorized to do by their charter, and the additional enactments. For acts thus done by authority of law, no damages áre recoverable. Damages so occasioned are damnum absque injuria. Radclif’s Ex’rs v. The Mayor, Spc. of Brooklyn, 4 Comstock, 200 ; Callender v. Marsh, 1 Pick. 418.</p> <p>If the plaintiff has sustained any damage, for which he is entitled to redress, he should have sought it by application to the County Commissioners, agreeably to the provisions of the statute. Mason v. Ken. Sp P. R. R. 31 Maine, 215 ; Dodge v. Co. Commissioners of Essex, 3 Met. 380.</p>

On Report from Nisi Prius, Tenney, J., presiding. Assumpsit by the indorsee against the maker of a promissory note of ‡72,25, payable in fourteen months to the Protection Insurance Company of New Jersey or order, at the Augusta Bank.

Replevin of goods which had been attached -by the defendant, a deputy sheriff. The defendant in the District Court filed three pleas in abatement, grounded upon alleged defects in the service of the writ and in the replevin bond. To these pleas the plaintiff demurred, protesting however against any right in the defendant to present more than one plea in abatement. These demurrers were joined. That Court adjudged the pleas to be bad, and ordered the defendant to answer over.

On Exception from Nisi Prius, Tenney, J., presiding. Indebitatus Assumpsit, on account annexed for balance due on book $11,83. The bill of particulars filed by the plaintiff and used at the trial, was for “ goods sold to the defendant’s wife the debit items, amounting to $21,20, were for articles delivered at various times, such as cloths, trimmings for making them up, clothing, a muff, a pair of shoes and candlesticks.

On Facts agreed. Writ oe Entry. The land descended to the demandant by inheritance from her father, while she was under the age of twenty-one years and unmarried. She afterwards intermarried. The marriage was subsequent to the Act of 1844, securing to married women their rights in property.

On Report from Nisi Prius, Rice, J., presiding. Forcible Entry and Detainer. The respondent owned a building, the upper part of which was used for the residence of a family^ and the lower part for a mechanic’s shop, standing upon land of one Holland. He employed the complainants to remove it to land of the Lewis-ton Water Power Company.

<p>On Pacts agreed.</p> <p>Writ op Entry.</p> <p>In 1837, Peleg Tallman conveyed to his son, Henry Tail-man, a lot of land lying in Bath, to be held during the lifetime of Henry, remainder to Peleg Tallman, the second, in fee ; “ on condition that said Henry and Peleg, the second, shall allow [this demandant] Eleanor Tallman, wife of said grantor, to have the use, occupation and improvement of the same, during her natural life, if she shall request it.” Peleg Tallman, the grantor, after giving the deed, occupied the premises for- two or three years, and until he died, in 1841, having, by his will devised to said Eleanor, for her natural life, all his real estate in Bath, not otherwise disposed of, with reversion to said Henry. In 1844, Henry conveyed the lot by a deed under which the title came to the tenant.</p> <p>After the tenant’s title accrued, and shortly before this suit was brought, the demandant, by her attorney, demanded of Henry her life estate or an exhibition of his title. In neither respect was this demand complied with. The deed to Henry was not recorded until 1847, after the commencement of this suit, which was brought to recover possession of the lot.</p> <p>On this statement of facts, the case was submitted to the Court.</p> <p>As the possession remained in Peleg Tallman up to the time when the will took effect, both the deed and the will may be taken together and explain each other.</p> <p>The deed was upon a condition precedent. It was that, if she desired it, the occcupation was to be allowed to her. That she desired the occupation is proved by the demand which she made. By failure to perform the condition, the title under the deed was forfeited and became void. Her right to a life estate under the will then became perfected. But, as a demand was made before the suit, it makes no difference whether the condition of the deed was precedent or subsequent. Frost v. Butler, 8 Maine, 225; Foxcroft v. Mallett, 4 How. 353; Bean v. Whistler, 7 Watts, 144; Na-son v. Blasdell, 17 Yermont, 216; Commonwealth v. Fiske, S Mete. 238; Bryan v. Bradley, 16 Conn. 474; Stearns v. Godfrey, 16 Maine, 158 ; Fox v. Phelps, 17 Wend. 393; 20 Wend. 437.</p> <p>The deed from Henry Tallman, under which the tenant claims, was, of itself, a breach of the condition contained in the deed from Peleg Tallman, and operated a forfeiture. For it deprived him of the means to comply with the condition. The deed from him, therefore, conveyed nothing, and the tenant is without title. 7 Watts, cited above; 4 Howard, cited above; Cross v. Colman, 8 Dana, 446.</p> <p>The demandant’s claim therefore is: —</p> <p>1. That she holds under her husband’s will, unless the title of Henry under his unrecorded deed defeats it.</p> <p>2. That his title does not defeat it, because the life estate is expressly reserved in the deed to Henry.</p> <p>3. If it was not expressly reserved, yet his deed being only on an express condition, the title was divested by a refusal to perform.</p>

<p>Petition eor Mandamus.</p>

<p>In. the construction of a will, the intention of the testator, as clearly discoverable from the whole will, is to be effectuated, if it can be done consistently with the established rules of law.</p> <p>In a devise to a person and his heirs, with a devise over in ease of Iris dying without issue, the words “ dying without issue” are construed to mean an indefinite failure of issue; and the word “ heirs” to mean heirs of his body.</p> <p>A devise over, after a devise in fee, cannot take effect as an executory devise, unless the event upon which it is to vest must necessarily happen within the prescribed period of a life or lives in being, and twenty-one years, and the period of gestation thereafter.</p> <p>As it is not matter of necessity that an indefinite failure of issue will happen ■within the prescribed period, such a devise cannot operate as an executory devise.</p> <p>A devise to a person and bis heirs, with a devise over, in case he should die without issue, vests in the first devisee an estate in fee tail, and a remainder in the second devisee.</p> <p>Land was devised to M., his heirs and assigns, with devise’over, (in ease he should die without “ heirs,”) to his wife during life or widowhood; and at the termination of her estate, to the devisor’s surviving children or their “heirs.” Held; —</p> <p>That the devise to M. was not limited to a life estate in him ; —</p> <p>That it could not take effect as an executory devise; —</p> <p>That it did not vest in M. a fee simple conditional, but did vest in him a fee tail general.</p> <p>One seized in fee tail may bar the entail, and all remainders, by a conveyance in fee simple.</p> <p>Such a conveyance vests an indefeasible title in the grantee.</p>

<p>Administrators have authority to submit to referees any controverted personal claims, affecting the estates under their care.</p> <p>To a submission “of all demands except heirship,” entered into by parties between whom there existed no controversy respecting inherited estates, no specific demand need to be annexed, inasmuch as the words “ except heir-ship” are, in such case, of no import or effect.</p> <p>In an award founded upon a submission of “ all demands,” a statement that the award is in full of “ all accounts” to them submitted,” is to be understood as meaning “ in full of all demands” to them submitted.</p>

On Report from Nisi Prius, Tenney, J., presiding. Assumpsit upon a note, for $50, dated January 7, 1836, given by the defendant, to William Weston, Jr., the plaintiff’s intestate. Plea, non-assumpsit. The following were the material facts, as shown by copies from the probate records, which were received in evidence, though objected to. In 1841, William Weston, Jr., and his mother, Mary Weston, were appointed administrators of the estate of his father, William Weston.

<p>On Report from Nisi Prius, Hathaway, J., presiding.</p> <p>Assumpsit, commenced October 2, 1852, upon the following instrument, signed by the defendant’s intestate, and attested by a subscribing witness.</p> <p>“ For valuable consideration, this day to me paid by Daniel Bunker, of Anson, the receipt whereof I hereby acknowledge, I hereby undertake, promise and agree to pay for the said Bunker, two hundred dollars, and to have the same indorsed upon a note given by said Bunker to Benjamin Hilton, Jr., or George Athearn, together with interest on the same sum from this to the date of the indorsement upon said note, said note dated about the first of the year 1832, and was made payable in five years, and I do farther agree with the said Bunker, that if I do not procure the indorsement as aforesaid, within six months from the time the said note becomes due, to pay him the said sum of two hundred dollars, with interest from this time.</p> <p>“Anson, April 9, 1836.”</p> <p>The plaintiff also introduced a bond under seal, made by this defendant as administratrix, in the penal sum of $500. This bond was never delivered to the plaintiff, but was lodged in the probate office, from which it was taken merely to bo used as evidence in this suit. It was conditioned that, “ whereas, in the beginning of the year 1832, the said Bunker gave his promissory note to one George Athearn, or Benjamin Hilton, Jr., for the sum of-dollars, and afterwards on the ninth day of April, 1836, the said Jesse Athearn being then in full life, for a valuable consideration, undertook to cause to be indorsed on said note above described, the sum of two hundred dollars, within six months from that date, and on failure thereof to refund or pay the same sum to said Bunker, with interest, and whereas the said George Athearn had before that time left home on a voyage to sea, and has never since returned, and the above described note has not been found, and the said George is supposed to be dead, and the note is supposed to be lost, and the said Jesse Athearn having received the above sum on account of a debt due him from said George, and had a good right to receive it and to retain it to his own use; and the administrator of the estate of said Jesse Athearn is ready to account with the legal representatives of said George Athearn, whenever thereto requested.</p> <p>“Now, therefore, if the said Mary Athearn shall effectually indemnify and save harmless the said Bunker, against any claim that may be made on him on account of the above sum of $200, paid by him to said Jesse Athearn, this obligation is to be void.”</p> <p>The case was submitted to the Court upon an agreement, that if, upon the foregoing testimony, the action is not maintainable, a nonsuit shall be entered.</p> <p>The instrument declared upon is not within the statute of limitations. It was attested by a subscribing witness, and it is a promissory note.</p> <p>In order to constitute such- a note, no particular form of words is necessary. Chit, on Bills, 9th Am. Ed. 148, 149.</p> <p>Any promise, which, from the time of making it, cannot be performed without the payment of money, is a promissory note. Bailey on Bills, c. 1, § 2.</p> <p>The essential qualities of notes are, that they be for the payment of money only, and that such payment be absolute and not contingent, either as to the amount, event, fund or person. Chit, on Bills, 152.</p> <p>The instrument declared upon in this suit possesses all those requisites. It could be complied with only by the payment of money. If it could be discharged by the procurement of an indorsement on another note, that indorsement could be procured only by the payment of money.</p> <p>The real import of the paper is, that the signer will pay this plaintiff $200, and interest, with a stipulation by Bunker that, if the signer paid the amount to one of Bunker’s creditors, it should be allowed as a payment to Bunker.</p> <p>It is certainly as near to the ordinary form of a promissory note, as that declared upon in Grant v. Vaughan, Bur. 1526.</p> <p>It is no more uncertain or contingent than the note in Briggs v. Lapham, 12 Mete. 474.</p> <p>But if the paper cannot be treated as a promissory note, the bond given by the defendant takes the case out of the statute of limitations. It is a renewal of the promise. It is an express, written acknowledgment that the original promise has never beenperlormed.</p> <p>An admission by an executor or administrator, after six years, that a contract is undischarged, takes the contract out of the statute. Baxter v. Penniman, 8 Mass. 133; Brown v. Anderson, 13 Mass. 201; Emerson v. Thompson, 16 Mass. 429; R. S. c. 146, § 19.</p> <p>The statute makes no distinction as to the requirements to renew a promise, whether on the part of the original promisor or his administrator.</p>

<p>On Exceptions from Nisi Prius, Tenney, J., presiding.</p> <p>Assumpsit.</p> <p>Fogg contracted with the proprietors of a timber township of land, that he would cut and haul logs at a stipulated price per thousand feet, putting on eight or ten teams of six oxen each. Four or more of the teams were to be located on the Eastern part of the township and to haul into the Pine stream. The other teams were to haul to other waters. That stream was a short distance East of the township, running Northwardly. There was a landing place upon it at the point A, from which lumber could be conveniently run.</p> <p> </p> <p>Above the point A, the stream was obstructed by rocks, making it impracticable- to drive logs except at large expense. Before that contract with the proprietors was made, the plaintiffs had examined the stream, and concluded that A would be the place, to which the logs from the East part of the township should be hauled.</p> <p>After making that contract, it was stipulated between these parties, in writing, that the plaintiffs should have half the contract, and “be equal” with Fogg; “the division to be made equal as to the operation as can be got at by lotting and bidding for chance, after going on the land.”</p> <p>The teams were put on, and the contract with the proprietors complied with. Fogg’s teams were located upon the East part of the township, and hauled to Pine stream, at the point A. He claimed that this part of the hauling was more expensive than the rest, and that, to make the thing equal, he should be allowed twenty-five cents á thousand for that hauling more than the plaintiffs should have for what they hauled, as their location was the most favorable.</p> <p>On the trial, the plaintiffs contended that the increase of expense, incurred by Fogg, in hauling to point A, was merely voluntary on his part, and that a hauling into the Pine stream at the nearest distance, would have been a fulfillment of his obligation, under the contract with the proprietors, and that he was not bound to inquire from what position on the stream, the logs could be most cheaply driven.</p> <p>And, upon this point, the Judge so instructed the jury.</p> <p>The defendant insisted that the contract between himself and the plaintiffs had been modified, so that the chances should be equalized on settlement.</p> <p>On this point evidence was introduced by both parties.</p> <p>The defendant called one Corson to testify to a conversation between the defendant and James Palmer, one of the plaintiffs. This evidence was objected to, because the arrangement, at the close of the discussion, was put into writing, signed by Palmer and placed in the defendant’s hands.</p> <p>The witness was allowed to testify, de bene esse. He stated the admissions and declarations made by Palmer. The defendant then introduced the writing, and the Judge directed the jury to disregard the evidence of Corson.</p> <p>The part of the paper, .deemed by the defendant to be material, was as follows : —</p> <p>“ I hereby agree with Joshua Fogg to be my part, in every respect, of expense in obtaining our pay for the lumbering business the past winter j also agree to an equal division of chances of teams on their location rights, as to make them equal in regard to worth to haul and value. James Palmer.”</p> <p>The Court, in giving a construction to this writing, said that it did not purport to contain any admission by the signer that there had been a modification of the orignal contract, but that it was evidence of an independent agreement, and that it was not competent for one of the plaintiffs to make a new agreement, in reference to the former transaction, thereby varying essentially the former contract, so as to affect the rights of his co-plaintiffs, unless they assented to the new agreement, or ratified it afterwards, or unless the plaintiffs were co-partners in the transaction. The Judge further instructed the jury, that the paper might be important, as having a tendency to show that Palmer did not consider the modification of the original contract to be unreasonable ; and that thus, upon the question whether there had been a modification, the paper might have a legitimate bearing.</p> <p>The plaintiffs introduced three depositions, taken in Wisconsin, returnable to the June term, 1852. Prior to the month of June, that term was abolished, and its business transferred to the October term, at which the depositions Avere opened and. filed.</p> <p>The defendant seasonably objected to the depositions, —</p> <p>1. Because they were not opened and filed at the term for which they were taken, but were opened and filed at a term, when the same could not lawfully be done.</p> <p>2. Because it did not appear that the deponents Avere sworn before the depositions Avere given.</p> <p>3. Because, though required by the defendant, the signature and authority of the person taking the depositions were not shown.</p> <p>These objections were overruled.</p> <p>The verdict was for the plaintiffs, and the defendant excepted.</p>

<p>The B. S. e. 25, § 4, requires county commissioners, in locating a highway, to “cause durable monuments to be erected at the angles thereof.”</p> <p>As a discharge of that duty, they may adopt, as monuments, county or town lines, or natural objects, as trees, rocks or banks of rivers.</p> <p>So “ the top of a narrow horseback,” on which a location is made, extending through many courses and distances, may be adopted as furnishing a sufficient monument at each of the angles.</p> <p>Writs of certiorari, for the purpose of quashing the proceedings of county commissioners in the establishment of highways, are grantable only at the discretion of the Court.</p> <p>Of the departure from statute requirements, which may be tolerated in such proceedings.</p>

<p>One, contracting to pay money, upon receiving a payment to himself from a third person, does not defeat or diminish his liability by a surrender of his authority to receive such payment to himself.</p> <p>His liahility, however, is at an end, if hy means of the insolvency of such tim'd person, or for any other cause, the eontractee could not be damnified hy the surrender.</p> <p>In such a case the burden of proving, that the eontractee could receive no damage from the surrender, is upon the contractor.</p>

<p>Upon Facts agreed.</p> <p>Trover for fifteen tons of hay.</p> <p>In 1850, James Marston occupied a farm in Gardiner. On April 2, he conveyed to P. Sheldon all the crops, including the hay to be raised upon the farm, by a bill of sale under seal, it being agreed between them that Marston was to keep possession of the farm and manage it, and harvest and sell the crops; that Sheldon should pay all expenses attendant upon the raising and harvesting the same; and then should sell them, and after deducting for such expenses, and for a note of $100, which Sheldon had signed for Marston, pay the surplus to one of Marston’s creditors.</p> <p>The farm yielded about 45 tons of hay, which Marston cut and placed in the barn. He then asked the defendant to press it; but as Marston was known to be insolvent, the defendant refused to do it, unless secured for the service.</p> <p>It was then agreed that the defendant should do the pressing at $1,75 per ton, and take pay in a bill of sale of fifteen tons of the hay, which was given as follows; “Edward Peacock bought of James Marston fifteen tons of hay, it being the same which said Peacock is now pressing in his, (Mars-ton’s,) barn — price, $8,00 per ton. Received payment by pressing. Sept. 21, 1850. James Marston.”</p> <p>The defendant pressed 45 tons, 598 pounds, in bundles of from 300 to 375 pounds, the weight being marked upon each bundle. These bundles, including said fifteen tons, were all packed up together in the barn. Marston requested the defendant to take his fifteen tons away, but it was neglected until after Marston’s death in December of the same year.</p> <p>The plaintiff was appointed administrator. The whole of the hay was inventoried and appraised as the property of Marston.</p> <p>The defendant then, without the knowledge or consent of the plaintiff, took away the fifteen tons, for which this suit is brought. Upon the estate of Marston, a commission of insolvency has been issued.</p>

On Report from Nisi Prius, Appleton, J., presiding. Assumpsit upon an unnegotiable promissory note. The defence was that, in a suit brought by McAdams and others against these plaintiffs, in the District Court for this county, the defendants had been summoned and charged as trustees of these plaintiffs.

On Facts agreed. Trespass de bonis asportatis. School districts numbered one and two in Cherryfield, at separate meetings, duly called for that purpose, each voted to unite together, according to the statute of 1847, «§> 3, which provides that a district may “.join with one or more other districts, for the purpose of uniting the more advanced scholars of each district into one school; and Avhen any districts shall so determine, they may appropriate such a proportion of the…

On Exceptions from Nisi Prius, Appleton, J., presiding. Trover. — The defendants offered one Stickney as a witness. He was, however, a surety on the bail bond, given by the defendants in this action, and was, for that reason, objected to. D. Tyler, the defendants’ attorney, by leave of Court, deposited $100, of his own money, with the clerk, “for the benefit of the witness, in case of his liability on the bond.” The judgment was for the plaintiff.

On Report from Nisi Prius, Appleton, J., presiding. Trespass, for cutting and hauling timber subsequent to December 12, 1850, from two lots of timber land, which had been reserved for public uses.

On Exceptions from Nisi Prius, Appleton, J., presiding. Assumpsit. A complaint, in writing, was made to the selectmen of East-port, signed by one M. B., in the following words : — “ To the selectmen of the town of Eastport. “ M. B. of Eastport, makes complaint and says, that Elizabeth Howard is insane, and he believes it will be for her comfort and safety that she be removed to the insane hospital.

<p>On Facts agreed.</p> <p>Assumpsit.</p> <p>The writ contained a special count upon the defendant’s promise, and also the common money counts.</p> <p>Some of the inhabitants of Machias associated, with a view to get a public hotel established in that town, and procured subscribers in aid of that purpose. The paper subscribed was in the following form: —</p> <p>“ The undersigned, being impressed with the absolute necessity of providing a suitable building in this village to accommodate the public as a hotel, hereby promise and agree to pay to such person as those who become subscribers hereto, shall hereafter appoint as their treasurer, the sums of money set against their names respectively, the sum of twenty-five dollars to be considered as a share, and the first three or any other three of the subscribers hereto, whenever the amount of five thousand dollars shall have been subscribed, to be authorized to call a meeting of the subscribers to take such action in regard to procuring a lot for the proposed hotel, and building the same, as they shall deem, expedient.</p> <p>“ Each subscriber to be entitled to votes in proportion to his number of shares. “Machias, Aug. 4, 1851.”</p> <p>To this paper about eighty persons appended their names, subscribing for a few more than two hundred shares. Among these persons, the defendant, by his agent, subscribed for two shares.</p> <p>Several meetings of these subscribers were duly called, at which most of them attended. At one of these meetings , they chose a building committee and a treasurer, and appointed an agent, who procured from the Legislature an Act, passed in February, 1852, incorporating six of their number, with their associates and successors, by the name of the Machias Hotel Company, which was afterwards duly organized.</p> <p>Prior to the passage of that Act, the association had expended one thousand dollars toward the erection of the hotel. The corporation then stepped in, taking the benefit of the purchases made and of the labor performed by means of that expenditure, and then expended an additional sum of $4000.</p> <p>The defendant though requested by the treasurer of the association and also by the treasurer of the corporation, refused to pay the sum, ($50,) which he had subscribed, and this suit is brought to recover the same. He never attended any of the meetings, either of the association or of the corporation.</p> <p>Several of the subscribers to the paper, including the defendant, did not associate with the corporation, or recognize any of their doings.</p> <p>The case was submitted to the Court for a decision, “ as the law, applied to the facts, may require.”</p> <p>I. The defendant’s promise will support assumpsit for money laid out and expended. Every sound principle demands, that where persons expend money for public benefit, on the faith of mutual promises, no one should be allowed to throw his share of the burden upon his associates. And to this effect the law is well established. Homes, Adm’r of Larkin, v. Dana, 12 Mass. 190; Farmington Academy v. Allen, 14 Mass. 172; Chester Glass Co. v. Deivcy, 16 Mass. 94; United Society v. Eagle Bank, 7 Conn. 456; Religious Society v. Johns, 7 Johns. 112; Bryant v. Goodnow, 5 Pick. 228.</p> <p>The same is laid down as a legal principle by Chitty on Con. 505 ; Angelí & Ames on Corporations, 476 and seq.</p> <p>In Foxcroft Academy v. Favor, 4 Maine, 382, though decided in favor of the defendant, in a suit on a subscription for the establishment of an academy, the doctrine established as above, was fully recognized, and the action failed merely for want of a money count and for want of proof that money had been expended.</p> <p>In Farmington Academy v. Flint, referred to in Farming-ton Academy v. Allen, the same point was decided in the same way.</p> <p>Limer'ick Academy v. Davis, 11 Mass. 113, and Bridgewater Academy v. Gilbert, 2 Pick. 579, at first sight appear to militate against the principle contended for. But, in the first suit, the ground on -which the Court base their decision for the defendant, was want of privity in the parties, and they suggest that a money count might have sustained the action. In the second, Gilbert had notified the trustees of his refusal to ratify, his agreement, before expense incurred, and for good reaspn, i. e. the removal of the academy.</p> <p>In the case at bar, the money count is depended on; and it is. admitted that there had been an expenditure of $5000, on the faith of that subscription paper, before and after incorporation. A part of that expense, $ 1000, was expended within a. very.few days from the time of the defendant’s subscription, Sept.'4, 1851.</p> <p>II. It was proper to bring the action in the name of the Machias Hotel Company, instead of the names of the individual subscribers or their treasurer.</p> <p>1. A promise to pay an agent will support an action by his principal. Chitty’s Plead. 5, 8; Warren Academy v. Starred, 15 Maine, 443 ; Garland v. Reynolds,, 20 Maine, 45 ; Gilmore v. Pope, 5 Mass. 491 ; Niven v. Spikeman, 12 Johns. 401; Pigot v. Thompson, 3 Bos.. & Pull. 147.</p> <p>2. The “ Machias Hotel Co.” is identical with the associated subscribers, and succeeds to their right of action. Medway Cotton Manufacturing Co. v. Adams, 10 Mass. 360 ; Commercial Bank v. French, 21 Pick. 486; Lowell v. Morse, 1 Met. 473 ; Charitable Association v. Baldwin, 1 Met. 359.</p> <p>The charter was procured by the act of the association, and in pursuance of its vote, and was accepted at a meeting of the original subscribers.</p> <p>That it was intended by the subscribers to get a charter of incorporation, is an irresistible inference from the character of the enterprize.</p> <p>The property purchased and the labor done for the association vested in the corporation, so soon as the charter was obtained.</p> <p>The action then is brought by the associated subscribers, or those of them who, on the faith of the mutual ageement, have expended their money. Can it be that they have lost their right to recover merely, because they sue by the name given them by the Legislature ?</p> <p>If it is objected, that the defendant did not join in the procuring a charter, and cannot be bound by it, the reply is, that on the faith of the mutual subscription, much of the money was raised and expended, before the charter was procured.</p> <p>This suit is not brought against the defendant as a stockholder, but merely to recover the money expended by the associates on the faith of his promise.</p> <p>The action cannot be maintained. There was, in fact, no consideration for the defendant’s promise, nor does the paper, signed by him, import any. Ldmericlc Academy v. Davis, 11 Mass.' 113; Farmington Academy v. Allen, 14 Mass. 175; Bridgewater Academy v. Gilbert, 2 Pick. 579; Foxcroft Academy v. Favor, 4 Maine, 383.</p> <p>The only ground upon which an action of this description can ever be maintained is, that by reason of the contract the plaintiffs were led to confide in the engagement of the defendant so far as to advance their own money for him, so that equity and good conscience require of him a reimbursement.</p> <p>Now if there be any obligation upon tills defendant to make any reimbursement, it is not to these plaintiffs, but to his co-subscribers, and the suit should be in their name, and not in that of the plaintiffs.</p> <p>The promise of the paper was to pay to the treasurer of the associates. There is, therefore, no privity of contract between these parties.</p> <p>There was no authority, conferred by the paper, upon any body to procure a charter for a company from the Legislature. Nor did the defendant ever subsequently assent to any such procedure, and he is not bound by it. He attended no meeting of the subscribers, and was bound by none of their doings. He never became one of the company, for he was not named in the Act of incorporation, and never took any interest or part in it.</p>

<p>On Report from Nisi Prius, Tenney, J'., presiding.</p> <p>Assumpsit to recover for expenses incurred for pauper supplies.</p> <p>The ease was submitted upon testimony, for a nonsuit or default as the facts and the law require. The facts, as found by the Court, are reported in the opinion.</p>

On Facts agreed. Trespass, quare clausum. John Rowe devised his real estate to his son Ephraim.

On Facts agreed'. Trespass for a cow, alleged to have been killed by the rail road engine. The defendants’ rail road was laid through the plaintiffs’ land, with a reservation of a road, crossing on grade with cattle guards. The defendants built the cattle guards on each side of the plaintiffs’ crossing road, and erected good and sufficient fences on each side of the rail road through the plaintiffs’ lands, with guard fences extending to the cattle guards.

On Facts agreed. Writ op Entry. The land demanded was the property of Mark Lord and Betsey Lord, his wife, under a conveyance made to them jointly in April, 1848, and was paid for out of the avails of land sold, which belonged to the said Betsey and to said Markin her right. In June, 1848, the husband, by a deed of quitclaim in common form, conveyed to the wife all his rights in the land, to hold to her, her heirs and assigns.

On Demurrer. Debt, to recover a penalty, not less than five nor more than twenty dollars, for rescuing swine taken up to be impounded. The declaration alleges that the swine were going at large without a keeper, “contrary to an Act of the State entitled, Of Pounds and Impounding Beasts,” and that the rescue was “ contrary to the Act aforesaid.” The defendant filed a general demurrer, to which there was a joinder. The act complained of was not an offence at common law.

On Report from Nisi Prius, Wells, J., presiding. Bastardy Process. The complainant had, in due form, charged the respondent as the father of her child.

On Facts agreed. Writ or Entry. The tract ABOD was owned by the demandant and his co-tenants. On its North side, it extended from Maine street along Cutts street 298 feet to land now belonging to the Saco Water Power Company. On its South side, it extended from Maine street 279T%- feet to land of said company. Intending to make an amicable partition among themselves, the co-tenants carried their title deed to one Thos.

On Exceptions from Nisi Prius, Wells, J., presiding. Bill in Equits'. The female plaintiff was the wife of Eliab Littlefield, under whose will her claims, as presented in this bill, are alleged to have arisen.

On Facts agreed. Assumpsit, brought by Franklin L. Harmon and Almeda, his wife, for labor performed by her before marriage. She labored for the company 18 days. In that time she wove 53 pieces at 13 cents each, amounting to $7,41. “ The company, in addition allowed her, as due to her, 10 cents for board, making in the whole, $7,51, due to said Almeda.” To recover that sum this suit was brought, after a demand made. She began to labor on Sept. 27, 1847.

<p>On Report from Nisi Prius, Wells, J., presiding.</p> <p>Process for Partition of real estate.</p> <p>Petition by the Saco Water Power Company and Gideon Tucker, representing that they are tenants iu common with others, to them unknown, of “ the Bog Mill and the water and privilege used with, and to the same belonging;” lying upon the north side of the road and bounded as follows, &c. and praying that their respective parts may be set off to them in severalty.</p> <p>The petition was filed at February term, 1844. The appearance of the respondent was entered at May term, 1844, and her brief statement was filed at the September term, 1852; alleging a sole seizin in herself of a specified part of the land. At the April term, 1853, she filed a further brief statement, alleging that, as to the lot described in her first brief statement, she had acquired an indefeasible title by a grant, to be presumed from an adverse, open, notorious, and exclusive possession for more than twenty years.</p> <p>At the trial, the petitioners’ ownership in the mill and mill privilege was admitted by the respondent, but she denied that the lot described in her brief statement was a part of the mill privilege. And the petitioners admitted that the house built by J. K. Cole, about the year 1830, has ever since been occupied by him, or by the respondent, as his grantee.</p> <p>It was then testified by a witness for the petitioners, that from the year 1802, the mill owners had occupied the land on the North side of the road, for piling logs, boards and other lumber, as each one had occasion, and found a space to do it in; — that the house, now occupied by the respondent, was built by J. K. Cole about the year 1830; — that, until the house frame was raised, the land where it stands had been always since 1802 occupied by the mill owners as a depository for boards and timber. The plan used at the trial shows that no part of the lot claimed by the respondent is more than 134 feet distant from the mill.</p> <p>The case was then submitted to the Court upon the following stipulations: —</p> <p>“ If the Court shall be of opinion, that the petitioners, by such possession and improvement, as was testified to, if proved to have continued more than 20 years, could not acquire such title to the premises described in the respondent’s brief statement as would enable them to maintain their petition for partition, then judgment is to be rendered for the respondent, as to the premises so described, and the petitioners are to have judgment, as prayed for, of the residue of the premises described in their said petition.</p> <p>“ If the Court shall be of opinion that the petitioners, by such a possession and occupancy of the premises as was testified to, could acquire such a title as would enable them to maintain their petition, but that the respondent by her disseizin, which commenced less than 20 years before the filing of this petition, but has now continued more than 20 years, has acquired a perfect title, then Edward E. Bourne, Esq. is to hear the parties and decide as to how much she has acquired a title to by an exclusive and adverse possession for more than 20 years, and as to that, judgment is to be rendered for the respondent, and as to the residue described in the petition, for the petitioners.</p> <p>“But if the Court shall be of opinion that the petitioners could upon such evidence of possession and improvement, so continued, acquire such title as would enable them to maintain their petition, and that the respondent has not acquired a title to the premises, described in her brief statement, by her disseizin commenced and continued less than 20 years before filing this petition, then the report is to be set aside and the cause to stand for trial.”</p> <p>1. The title of the petitioners to a proportion of the mill, and of the mill privilege, is conceded, and their co-tenants are owners of the residue.</p> <p>Was the land, claimed by the respondent, a part of the mill privilege ? If it was, the petitioners have had a right to partition thereof.</p> <p>What is a mill privilege ?</p> <p>In Moore v. Fletcher, 16 Maine, 65, the present Chief Justice says, “By the privilege of a mill, or its equivalent, mill privilege, is understood the land and water used with the mill, and on which it and its appendages stand.”</p> <p>In Maddox v. Goddard, 15 Maine, 224, the present Chief Justice says, “ It is not unusual, in our early history, to find mill privileges conveyed without any exact bounds; and such deeds have been held to convey so much land, as was necessary, and customarily used with the mill.” See also Blake v. Clark, 6 Greenl. 436 ; and Whitney v. Olney, 3 Mason, 280.</p> <p>In this case the whole lot was commonly used with the mill, and therefore comes strictly within the definition of a mill privilege.</p> <p>It was claimed as a part of the mill privilege, and occupied as such, down to the time when the respondent’s house was built. Logs, timber, boards, and other lumber, were piled there, by the mill owners, all, or nearly all, the time, a period of nearly thirty years.</p> <p>If it embraced less than the whole, including the piece claimed by the respondent, how much less, and where were its boundaries ?</p> <p>Even if it had not been necessary for the use of the mill, the use of it by the mill owners was such, as to give them a good title as against this respondent, who makes no pretence, that she or her grantor had any title to, or possession of, the premises claimed by her, prior to 1830. Her grantor and she are both strangers to the original title, and their only claim is, by a disseizin of the mill owners, at that time, without any pretence of any previous title or claim.</p> <p>In this process, then, the petitioners should not be compelled to prove a good title against all the world; but their possession, prior and Jong continued, should be held as sufficient evidence of title. Stearns on Real Actions, p. 213.</p> <p>But the proof of occupancy, by the mill owners, was such, as would give them a good title, as disseizors, even against a prior owner.</p> <p>The land was occupied in the manner that mill owners usualty occupy mill privileges. These are never fenced by the mill owners. They have no occasion for fencing.</p> <p>The owners of the mill occupied this land in common, as they used and occupied the mill; and for the purposes of the mill, as owners, and not otherwise, and their occupancy was constant, uninterrupted and exclusive.</p> <p>The petitioners therefore, having purchased a part of the premises, and shown a right of entry, have a right to partition. R. S. c. 121, § 2.</p> <p>2. Has the disseizin, by the respondent and her grantor, which commenced less than 20 years before this petition was filed, ripened into a right during the pendency of this process ?</p> <p>The respondent entered her appearance, and filed her plea in the District Court, at the May term, 1844, as appears by the plea itself, alleging therein that she had a right to be heard. Her further plea was filed in the Supreme Judicial Court, at the Sept, term, 1862.</p> <p>The well known principle of law is, that, in all actions and processes, the rights of the parties are to be determined, according to the state of the facts as they existed at the time when the proceedings were commenced. No limitations run during the pendency of an action. Neither party can acquire new rights by keeping an action in Court.</p> <p>Is the process for partition an exception ?</p> <p>Under our present law, the process for partition is an adversary proceeding, in which all persons interested are notified, and have a right to appear and be heard ; and by it are concluded the rights of all those who have, or might become parties. Cook v. Allen, 2 Mass. 462; Marshall v. Crehore, 13 Mete. 462.</p> <p>There is nothing in the Revised Statutes from which an inference could be drawn, that a delay or-a continuance of the process in Court should give either party new rights, or deprive either party of any rights existing at the time the petition was filed.</p> <p>The maintenance of the process must depend upon the question, whether the petitioner had a right of entry when the petition was filed. Bay lies v. Bussey, 5 Greenl. 163, (157-8.)</p> <p>In petitions for partition, the rights of the parties must be determined upon the facts as they existed when the process was instituted. A tenant in common of a reversion, expectant upon a lease for years, cannot maiutain the process, even though the lease should expire before the adjudication. Hunnewell v. Taylor Sp als., 6 Cush. 472, (476.)</p> <p>The fact of sole seizin, put in issue by the pleadings, “ can properly apply only to sole seizin at the time when the partition was filed.” Mallett v. Foxcroft, 1 Story, 474, (476.)</p> <p>Where, in a proceeding for partition, there is evidence of possession for 20 years before suit, adverse to the petitioner, it is a bar to the petition. Clapp v. Bromagham, 9 Cow. 530. (550, 561.)</p> <p>We contend, therefore, that this respondent acquired no rights by the running of the statute of limitations, after the petition was filed ; and as she had then been in possession less than fourteen years, she has acquired no right by possession.</p> <p>1. If any right whatever can be acquired by such acts as are stated in the testimony, it amounts to a mere easement, and not a fee simple estate in the premises. Stetson v. Veazie, 2 Fairf. 408; Littlefield v. Maxwell, 31 Maine, 134 ; Monmouth C. Co. v. Harford, 1 Cromp. Meas. & Rose, (614,) 631.</p> <p>But not even an easement was acquired. 2 Greenl. Cruise, p. 219, <§> 16; old ed. vol. 3, p. 424 ; 31 Maine, 134, before cited; 2 Greenl. Ev. <§ 539, and authorities cited; Donnell v. Clarke, 19 Maine, 175.</p> <p>2. Of land, which is open, unfenced and unenclosed, no fee simple estate can be acquired merely by the occasional piling of logs and boards thereon, at certain times, and the removal of them shortly afterwards. Bethum v. Turner, 1 Greenl. Ill; Tilton v. Hunter, 24 Maine, 32; Foxcroft v. Barnes, 29 Maine, 131; Littlefield v. Maxwell, 31 Maine, 134; Gloucester v. Beach, note to 2 Pick. 60; Thomas v. Marshfield, 13 Pick. 249, 2 ¶; Slater v. Jepherson, 6 Cush. 129, noticing a distinction said to exist between decisions in Mass, and Maine, and some others; Bailey v. Carleton, 12 N. H. 18.</p> <p>3. The petitioners are not entitled to have partition of land to which the respondent, at the time of the trial, had a perfect title. The fding of the petition and the proceedings thereon thus far, did not interrupt or purge the disseizin; and sufficient time had elapsed to give title to the respondent, when the trial took place, if not at the time of filing the petition.</p> <p>The filing of the petition, and even judgment thereon, makes no interruption io the claim for betterments by six years adverse possession. Baylies v. Bussey, 5 Greenl. 153; Tilton v. Palmer, 31 Maine, 487.</p> <p>To obtain betterments, there must bo six years adverse possession. Treat v. Strickland, 23 Maine, 237, 238.</p> <p>In petitions for partition “no precept ever issues' in the nature of an execution to put the petitioner into possession.” Baylies v. Bussey, before cited, 5 Greenl. 159; R. S. c. 121, § 9, 11.</p>

On Exceptions from Nisi Prius, Wells, J., presiding. Writ op Entry. The demandant’s title to the land was under a warranty deed from Ephraim Woodman to John Robbins, and a warranty deed from Robbins to herself. But Monroe Woodman had previously owned it. To prove that Monroe Woodman had conveyed it to Ephraim Woodman by a deed now lost by time and accident, the demandant called Ephraim Woodman as a witness, but he was objected to on the ground of interest.

On Report from Nisi Prius, Wells, J., presiding. Assumpsit for services and expenses in driving the defendants’ logs upon the Sandy river. The plaintiff and one Ingham were co-partners.

On Exceptions from Nisi Prius, Howard, J., presiding. Assault and Battery. An officer held a warrant for service against one Bridgham, and employed the defendant to aid in serving it. In attempting to arrest Bridgham, the officer was resisted by this plaintiff. To repel that resistance, this defendant inflicted the violence for which this suit is brought.

<p>On Exceptions from Nisi Prius, Howard, J., presiding.</p> <p>The City Council of Portland ordered, “ that the Committee on the Fire Department be authorized to contract for the construction of a suitable number of stone reservoirs, in or near Commercial street, not exceeding five in number.”</p> <p>Pursuant to that authority, the committee contracted with the plaintiff to build five reservoirs, in conformity to a plan and specifications, and to pay him $387,50 for each of them.</p> <p>The plaintiff procured materials for the reservoirs, and built one of them. There was evidence tending, (as the plaintiff insisted,) to show that some of the committee superintended the construction of the reservoir and accepted it, having assented, to some alterations from the prescribed plan. The work, however, was unsatisfactory to the committee. They paid the plaintiff $350, and forbade him to' proceed any further under the contract.</p> <p>There also was evidence tending to show that the Committee on the Fire Department always had charge of erecting reservoirs.</p> <p>This action is assumpsit, brought to recover $37,50, the balance for building the one reservoir and $800 for injury by the committee’s rescission of the contract as to the other four.</p> <p>Among other requests to the Judge for instruction to the jury, were the following : —■</p> <p>“ 2. That if the plaintiff substantially completed the contract for the reservoir at Titcomb’s wharf, and built it of as good materials, and to the acceptance of the Committee on the Fire Department, the city would be bound to pay what it was worth, which instruction the Judge declined to give.</p> <p>“ 3. That if the jury find the city, after the reservoir was constructed, paid the plaintiff $350, on account of it, such payment was an acceptance of it by the city, and that if not in strict accordance with the terms of the contract, the plaintiff might recover the value of the reservoirs, or else the contract price, less such a sum as it would cost to make it equal to the kind specified in the contract, which instruction the Court declined to give.”</p> <p>The verdict was for the defendants, and the plaintiff excepted to the Judge’s refusal to give the second and third requested instructions.</p> <p>The order of the City Council authorizing the committee to contract for the building of five reservoirs, together with the fact of the committee superintending the construction, assenting to the alterations and change of materials, and after-wards accepting the same, bound the city to pay for the reservoir what it was worth, more especially since it was shown that the Committee on the Fire Department always have had charge of building reservoirs. Damon v. Granby, 2 Pick. 345 ; Simons v. Heard, 23 Pick. 124 ; Snow v. Ware, 13 Met. 43.</p> <p>The second requested instruction should, therefore, have been given;</p> <p>The third requested instruction should also have been given. Hayden v. Madison, 7 Greenl. 76, is almost precisely like the present case, and the requested instruction was based on that authority. 7 Greenl. 118; Abbott v. Hermon, 13 Met. 43, before cited.</p>

On Exceptions from Nisi Prius, Wells, J., presiding. Debt on judgment for $1896,86, damage, and $5,33, cost, recovered March term, 1851, alleging that it was unsatisfied for $100. After issue and joinder upon the plea of mil tiel record, the plaintiff read the record, and moved for leave to amend his declaration so as to read $1896,80, instead of $1896,86.

On Report from Nisi Prius, Sheprey, C. J., presiding. Writ oe Entry. In 1848, Thomas Warren owned a lot of land, and agreed verbally with one Rowe, to sell it to him for $500, and to make some advances of materials and money to help Rowe to build a house upon it. Warren was to own the land and house, until paid the purchase money and advances, and then convey it to Rowe. Rowe proceeded to build the house, receiving from Warren the promised advances.

Assumpsit, upon an unnegotiable note for $jl2, dated Jan. 11, 1851, and payable in July then next with interest. The plaintiff read the note. The defendant then introduced a paper signed by the plaintiff, as follows : — “ Bridgton, May 30, 1851.

<p>An anthorization to an agent to affix the seal of Ms principal must itself be under seal.</p> <p>If an agent have affixed to an instrument the name and seal of Ms principal, when authorized to affix the name only, the seal cannot be treated as surplusage, even though the instrument would have been effectual by the signing without the sealing.</p> <p>In an assignment of a debtor’s property in trust, for the benefit of creditors, the trustees covenanted under seal that they would pay proportionate dividends to such creditors as should sign the instrument of assignment, assenting thereto and stipulating that they would release certain claims; —</p> <p>Held, that a creditor whose name had been signed thereto, under proper authority, by an agent who at the same time, without authority annexed a seal to the signature, was not so a party to the instrument as to maintain covenant broken against the assignees for Ms proportion of the dividends.</p>

<p>Of the powers of referees to decide both law and fact.</p>

On Exceptions from Nisi Prius, Rice, J., presiding. Complaint, made and sworn to on the “ 1 f>th day of December, A. D. 1850,” charging that the defendant on the “ 14th day of December, A. D. 1850,” without authority sold to N. T. a quantity of spirituous liquor, viz: “ one glass of ram. one glass of gin, one glass of brandy and one glass of wine.” After verdict against the defendant, he moved in arrest of judgment, for the reasons: — fj 1st. That the day of the month and…

On Report from Nisi Prius, Howard, J., presiding. Debt on bond dated July 22d, 1848, in ,the penal sum of $ 1000, on condition, that “ whereas the said Banking Company and said Smith have this day agreed with the undersigned, and by their bond bound themselves to sell and convey unto the undersigned the following tract of land [described] for the sum of one dollar per acre, payable, one third the first of November, 1849, one third the first of November, 1850, and the other…

Assumpsit. The plaintiff introduced an attested copy of the record of two justices of the peace and quorum.

On Report from Nisi Prius, Tenney, J., presiding. Forcible Entry and Detainer of a farm. The general issue alone was pleaded. On March. 9, 1851, the respondent paid the complainant one year’s rent of the farm in advance. No lease was given, and nothing was said about quitting at the end of the year. On May 18, 1852, the complainant gave to the respondent written notice to quit the farm and surrender peaceable possession of it to the complainant.

<p>On Exceptions from Nisi Prius, Tenney, J., presiding.</p> <p>Trespass de bonis.</p> <p>Two persons named Christie mortgaged to the plaintiff the chattels in controversy, among which was a large red horse. The mortgage was dated Nov. 30, 1848. Its condition was that the mortage® should pay and indemnify the mortgagee against his suretyship upon their note payable May 30, 1849. It stipulated that the articles should remain with them till called for by the mortgagee. The note was paid by the mortgagee Aug. 18, 1849.</p> <p>The plaintiff introduced evidence tending to prove that some of the articles were taken by the defendants from the possession of the mortgagers on July 16, 1849, and after-wards sold by him.</p> <p>The defendant objected that the action is unmaintainable, because the plaintiff, not having paid the note on said 16th of July, and not having called for possession, had no right to possession, and therefore no right to bring trespass. The objection was overruled, and the defendant excepted.</p> <p>The defendant offered to prove, that before the mortgage was made, one of the mortgagers came to the defendant with the horse and surrendered it to the defendant, declaring at the same time, that there was a previous bargain, that the horse was to remain the defendant’s property, unless he paid the defendant for it, which he had not done. The Judge admitted the proof of the surrender of the horse, but excluded the declarations of the previous bargain and the defendant excepted.</p> <p>The Judge instructed the jury that, if they believed the testimony upon that point, they would be authorized to find that the horse was transferred to the defendant by that surrender, it not appearing, that the surrenderor then owed any debts.</p> <p>The verdict was for the plaintiff for $538.</p> <p>Declarations which are merely narrative of a past transaction, are not admissible as evidence. 1 Greenl. on Ev. <§. 110 j S. P. in 1 Greenl. on Ev. $ 99.</p> <p>The defendant should have established by other proof that he let Christie have the horse in question, otherwise his declarations are not admissible for any purpose. Pool v. Bridges, 4 Pick. 379.</p> <p>Here the defendant relied upon the acts fffiid declarations of Christie to prove not only that he surrendered the horse to the defendant, but that he received it from him at some time previous.</p> <p>He also relied upon these declarations to show' what the bargain was at the time Christie received the horse. Nothing can be clearer upon legal principles than that these declarations were wholly inadmissible. The Court allowed the proof of the surrender to be put in by the defendant, allowed all his statements to be proved in relation to the surrender itself, and that he had not paid defendant for the horse. All this was allowed to be proved by the Court. But the declarations as to the previous bargain were excluded and properly so.</p> <p>The declarations of a person not a party who is living and a competent witness, though against his interest at the time they Avere made, are inadmissible. Fitch v. Chapman, 10 Conn. 8; 8. P. Baker v. Briggs, 8 Pick. 122.</p>

On Exceptions from Nisi Prius, Rice, J., presiding. Case. The plaintiff offered four depositions. They were objected to and were excluded. To that exclusion he excepted. The only one of the depositions, as to which the exception was insisted upon, was that of Merrill Savage.

On Exceptions from Nisi Prius, Hathaway, J., presiding. Dower.

<p>Ill a suit between tbe vendee of a chattel and an attaching officer, upon the question whether the sale was fraudulent as against the creditors of the vendor, the interest of the vendor is to bo viewed as a balanced interest, and he is therefore competent as a witness for either party.</p> <p>In a suit by the vendee of a chattel against an officer, by whom it had been attached in an action against the vendor and his co-partner, such co-partner is competent as a witness for the officer, although, should the officer recover, the avails of the property would probably go to reduce the witness’ liability upon the partnership debt.</p>

<p>The interest which an obligee or his assignee has in a conditional bond for the conveyance of real estate, is attachable by his creditors.</p> <p>Prior to the Act of 1847, chap. 21, that interest was to be made available to creditors by a sale of it on execution.</p> <p>If, after an attachment made in a suit against the obligee or his assignee, the defendant therein shall have obtained a conveyance pursuant to the bond, the title by the Act of 1847 may be transferred by a levy, to which the previous attachment shall impart its usual validity.</p> <p>Such an attachment, however, can give no validity to a levy, if Hie conveyance have been made, not to the execution debtor, but to some other person.</p> <p>Whatever rights, under such an attachment, are acquired by an auction purchase, can be vindicated only by process in equity.</p>

<p>On Report from Nisi Prius, Appleton, J., presiding.</p> <p>Assumpsit.</p> <p>At the trial, it appeared that a mortgage of a township of land had been made to the defendant, to secure debts due partly to himself, and partly to others, and that he foreclosed the mortgage. The plaintiff claimed an equitable interest in the land, to the extent of three sixteenths of it, and required a conveyance of that proportion.</p> <p>But the defendants contended that the plaintiff’s interest was only three twentieths ; the difference being three eightieths. Afterwards, in a suit between the parties, brought by the plaintiff, they, by a rule of Court, submitted that suit and all demands, to the determination of referees, who, as required by the submission, made two distinct awards on separate matters. Among other things, they awarded, that the defendants should convey by quitclaim deed to the plaintiff, three twentieths of the land, and the awards were accepted at October term of the Court, 1848.</p> <p>In 1849, an opportunity occurred for selling the township. The plaintiff still insisted that his ownership was three sixteenths, and declined to join in the sale, unless allowed that proportion of the avails.</p> <p>In order, however, that the chance of selling should not be lost, it was arranged that all should join in a conveyance, leaving the dispute as to the three eightieths, to be subsequently adjusted, upon stipulations contained in a written contract, marked D, between these parties. The conveyance of the township was accordingly made by a joint deed of all the owners, the plaintiff therein warranting three sixteenths.</p> <p>The said contract between these parties was substantially as follows: —</p> <p>“ Whereas three eightieth parts of said township are in dispute between the said Spofford and Buck, each claiming a legal ér equitable title to the same ; and whereas, in the sale of said township, the consideration for said three eightieths amounted to the sum of five hundred sixty-two dollars and fifty cents: —</p> <p>“ Now, therefore, said Spofford on his part agrees, that the said sum of five hundred sixty-two dollars and fifty cents, when paid, shall be lodged in the hands of Bliss Blodgett, to be held by him and appropriated as hereinafter expressed.</p> <p>“ And the said Buck, on his part, agrees that within one year he will commence an action for money had and received against said Spofford in our Supreme Judicial Court, and as speedily as possible prosecute the same to final judgment.</p> <p>“And said Spofford further agrees that, on the trial of said action, he will admit the said sum of five hundred and sixty-two dollars and fifty cents to be in his hands, and justly and equitably due to said Buck, provided he, said Buck, on said trial shall prove that he, at the time of his and others’ conveyance aforesaid, was legally or equitably entitled to the said three eightieth parts of said township, and shall establish his claim thereto by a judgment of said Court, and that he, said Spofford, will not object to the form of said action, nor to said Buck offering therein, evidence to substantiate his legal or equitable claim as aforesaid.</p> <p>“And said Buck further agrees, that provided he shall recover said sum of five hundred and sixty-two dollars and fifty cents debt, of said Spofford, in the action aforesaid, he will not enforce the judgment or execution therefor, against him, but discharge the same on payment of costs in said execution taxed, and look to said Blodgett for the debt, as deposited as aforesaid in his hands, who shall be authorized to pay the same over to said Buck, and said Buck also agrees, that on said trial, said Spofford may offer any evidence in reduction of said sum, and if reduced, the said reduction shall be paid over to said Spofford by said Blodgett; and if he, said Buck, shall fail to commence his suit as aforesaid, or having commenced the same shall fail to maintain it, then said Blodgett shall be authorized to pay over said amount in his hands to said Spofford.</p> <p>“And it is further agreed, if for cause, the Court should dispose of said action without an opportunity to try the merits, then in such event, said Buck may at any time thereafter within six weeks commence another action, and said funds shall remain as aforesaid to wait the event of such suit.</p> <p>This action is assumpsit for money had and received.</p> <p>After introducing said contract D, the plaintiff was proceeding to show that when the joint deed was made, he had a legal or equitable title to the three eightieths of the township.</p> <p>The counsel for the defendant, for the sake of saving time, stated his defence; it was thereupon agreed that the case should be reported upon the plaintiff’s evidence already introduced, and such as the defendant should offer.</p> <p>The defendant then introduced the record of the former suit including the said submission, awards and judgment thereon ; and also, subject to objection, the depositions of two of the referees. These depositions show that, before the referees, the plaintiff insisted upon a right to three sixteenths of the township, but that they decided him to be entitled, not to three sixteenths, but to three twentieths. The plaintiff admits that whatever title he has to any part of the township, accrued before the commencement of the former suit.</p> <p>If this defence is a bar to the plaintiff’s action, a nonsuit is to be entered; otherwise the case is to stand for trial.</p> <p>The agreement admits the sum of $562,50 in hands of defendant, and that it belongs to the plaintiff justly and equitably on a certain contingency; viz., provided the plaintiff shall on the trial of this action prove that he, at the time of the execution of the said agreement, was legally or equitably entitled to three eightieths of said township, and shall establish his claim thereto by judgment of this Court.</p> <p>The plaiutiff was proceeding to introduce evidence of his legal and equitable title, as provided for in said agreement D, when the defendant substantially interposed the objection that the matter was res adjudícala. This course is in direct conflict with the letter and spirit of the contract.</p> <p>The plaintiff’s depositions were inadmissible, as tending to, vary or explain the supposed award. Lufkin v. Field, 6 Met. 287, 289; Barlow v. Todd, 3 Johns. 367; Delery v. Stanton, 9 Johns. 38; Efiner v. Shaw, 2 Wend. 567; 2 Greenl. Ev. <§>74.</p> <p>But the defendant introduced what purports, as he contends, to be the copy’of a judgment. .</p> <p>If the copy be a copy of a valid judgment, then the award and other papers are inadmissible, being merged in the judgment.</p> <p>Is there a valid judgment ?</p> <p>What are its forms and requisites ?</p> <p>They are interlocutory or final. An interlocutory judgment is not evidence of any fact, except of the progress of the suit, and cannot operate beyond that point.</p> <p>The final judgment operates as evidence, and is binding on the parties, if duly entered up, recorded and proved.</p> <p>In order to its admission as evidence, it must be —</p> <p>1st. Final.</p> <p>2d. On assessment of damages, if for plaintiff.</p> <p>• 3d. It should appear that the Court, upon some assessment, duly entered the judgment in words following, “ it is therefore considered by the Court that the plaintiff recover the sum of-,” according to the usual form. Jarvis v. Blanchard, 6 Mass. 4 — 5.</p> <p>The copy is not of a valid judgment, finally disposing of the case, awarding damages and costs.</p> <p>It is but an interlocutory order or judgment, spread upon the record, and its introduction bars the assumption that any final judgment was ever entered up. Howe’s Practice, 265.</p> <p>If there be no final judgment, the preliminary papers are not evidence and certainly are not conclusive as an estoppel. 1 Greenl. Ev. <§> 529 ; Holt v. Miers, 9 C. & P. 191.</p> <p>And why does no judgment appear in this case ? The answer is apparent. There is no power in this Court on the award, either to render judgment or to order execution, or to decree specific performance. The Court has no jurisdiction of the awards, and that being apparent by an inspection of the record, it will be treated as a nullity, even if in other respects in due form and final. Granger v. Clark, 22 Maine, 128, 130.</p> <p>The Court appears to have exhausted its jurisdiction in accepting the report.</p> <p>The action was assumpsit. The Court had no power to accept an award, fixing the title to real estate. The error or mistake appears to be in the improvident acceptance of a report, where there was no jurisdiction, and where no judgment could be rendered.</p> <p>Had the fact come to the knowledge of the Coirrt, that the report required the execution of a deed, the report would have been accepted pro tanto, for the Court would not have attempted what it could not enforce.</p> <p>But even admitting that there be a valid award and even a valid judgment, or both; what then is the aspect of the case ?</p> <p>Does not the party place himse-lf by his counsel before this Court, doing violence to his own contract ?</p> <p>Has he not agreed not to do the very act which he is now substantially doing ?</p> <p>Does he not object to the introduction of testimony to support the legal and equitable claims of the plaintiff under the agreement ?</p> <p>Was not the trial of the merits the object of the parties, and was it not the very gist of the agreement ?</p> <p>The parties in the agreement went so far that, if a trial was not had on the merits in this suit, a new suit is to be instituted.</p> <p>By this agreement even if there be an award and judgment in every respect valid, the defendant has on good consideration bargained them away as a bar to the merits on this suit.</p> <p>The judgment or award is an estoppel available to the plaintiff, if to any one, and if a man may waive his right to an estoppel as a bar to the merits, by implication, how much more by special agreement. Howard v. Mitchell, 14 Mass. 243; Adams v. Barnes, 17 Mass. 365 ; 1 Saunders, 325, note 4, note d, Piulad, ed., 1846.</p> <p>„ The plea being the general issue, the ease should go to the jury. Doe v. Haddock, 26 Cr. M. & R. 316 ; Voglet v. Unch, 2 B. & A. 668; Stafford v. Clark, 2 Bing. 377.</p> <p>A man can bargain off his whole title ; why may he not on good consideration bargain off an estoppel, which is but evidence of title, and “evidence of questionable character?”</p> <p>The circumstances of the case show an agreement of the parties to open the whole merits of the case.</p> <p>If a party may lose the benefit of an estoppel by the form of his plea, how much more by his contract.</p>

On Report from Nisi Prius, Appleton, J., presiding. The plaintiffs were part owners of the schooner Abby Hammond. One Martin was also a part owner, but he does not join in this suit, not being one of the plaintiffs. The defendant in Boston procured insurance, in his own name for whom it might concern, upon the freight on a voyage from Boston to Aux Cayes and back, on which voyage the schooner was lost.

<p>Of items which constitute payments, in distinction from set-off's.</p>

On Facts agreed. Assumpsit. The defendant was part owner of the schooner Mary Ann, and sailed her as master. The plaintiff owned part of her, and there were three other part owners. About the time when this suit was commenced, the defendant sold his share to one of the other part owners. The plaintiff, however, attached that share in this suit. His claim is for his part of the schooner’s earnings, while sailed by the defendant as master.

<p>In trespass for injury to personal property, owned by the plaintiffs jointly with other co-tenants, damages may be recovered in proportion to the plaintiffs’ ownership.</p> <p>In trespass for injury to personal property, the person who committed the .act complained of, is competent, as a witness for the plaintiff, to prove that the act was done by direction of the defendant.</p>

<p>An award is void, if it have allowed a claim which was not submitted, and if the amount so allowed cannot be ascertained and separated from the residue of the award.</p> <p>A submission between co-tenants of a vessel, “ concerning her earnings and expenses,” does not authorize the referees to allow moneys paid or received for insurance.</p> <p>One who charters a vessel is not thereby authorized to insure for the owner. Neither has one part owner, as such, a right to insure for another.</p>

On Report from Nisi Prkis, Tenney, J., presiding. Writ of Entry, on a mortgage made by James Purinton to Thomas L. Winthrop and Reuel Williams. Winthrop having deceased, the action is brought by Williams as survivor.

<p>Possession of land for twenty years, by a mortgagee, without any payment of principal or interest by the mortgager or any dealings between Mm and tlie mortgagee in relation to the land, is presumptive evidence of a foreclosure.</p> <p>Possession of land for twenty years, by the mortgager, is presumptive evidence that the mortgage debt has been paid.</p> <p>No conditional judgment can be rendered in behalf of a mortgagee or his assignee, unless he prove both an indebtment and its amount.</p> <p>By B. S. c. 91, §' 26, the notice, by force of wliich a prior unregistered deed may prevail against a subsequent conveyance, must be not merely constructive, but actual.</p> <p>Prior to R. S. a notice merely constructive or implied, might have that effect.</p> <p>Of the evidence from wMch the Court, acting with jury powers, would infer such notice, in a transaction prior to the B. S.</p>