Volume 36 — Maine Reports

<p>By it. S. c. 123, § 4, no review shall he granted until due notice has been, given to the adverse party.</p> <p>A notice, allowing such time as the law prescribes for parties in other cases, and returnable when the respondent may be heard, whether at the same term or another* is all that is required,</p> <p>binder tlie statute of 1852, the granting of writs to review judgments against certificated bankrupts, is not at the discretion of the Court.</p> <p>The statute is imperative as to all cases coming within its purview.</p> <p>It operates on remedies only, and not on rights, and is, therefore, not fiable to the charge of hneonstitutionality.</p> <p>It allows no limitation to the time within which the review may he sought.</p> <p>It was repealed in 1853, but the repeal excepted all •“ actions pending.” Within that-exception, petitions for review were embraced and saved.</p>

On Exceptions from Nisi Prius, Rice, J., presiding. Trespass. The plaintiff introduced several witnesses, and then rested his case. The defendant, before proceeding to call his witnesses, gave notice that he would insist upon requiring the plaintiff before stopping, to put in all his evidence, except what might be of a rebutting character. The defendant then called and examined many witnesses and stopped.

On Facts agreed. Debt on Judgment. The plaintiff held a note against the defendant, payable in Nov. 1841, and recovered judgment upon it Dec. 24, 1842. Five days before the recovery of the judgment, viz., on Dec. 19, 1842, the defendant filed his petition to be decreed a bankrupt. Upon that petition such proceedings were had that he obtaiued, in 1844, a full discharge from all the debts due from him on said 19th of Dec. 1842, which were provable in the court of bankruptcy.

<p>Where a co-tenant of land, after petitioning for a partition, and prior to flu) interlocutory judgment of fiat partitio, lias conveyed bis interest, advantage of the conveyance can be taken by plea in bar.</p> <p>But a sale, made after such, interlocutory judgment, furnishes no objection to the petitioner's title.</p> <p>The owner of upland, bounded on the sea, will hold the flats for one hundred rods fiem highwatér mark, provided they extend so far, but not beyond that distance.</p> <p>A petition fi>r partition of land, described as bounded on the sba, or on a bay of the sea, is to be held as a petition for a division of the flats as well as of the upland.</p> <p>On such a petition, it is the duty of the Commissioners to divide the flats as well as the uplands.</p> <p>If, in such a case, the commissioners have left the flats undivided, their report "will he recommitted, for the purpose of having the flats divided, unless it appear to the Court that they are incapable of division.</p>

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Award of Reverses. The parties, on Feb’y 19, 1852, submitted their respective claims to arbitration, in the mode prescribed by R. S. c. 138, it being provided in the submission, that the award should be returned to the District Court by July 9, 1852. The referees heard the parties in March, 1852.

<p>Under H. S. c. 76, § 18, 19 and 20, the obligation of a stockholder to pay corporation debts is made to depend upon the officer’s certificate upon execution, that he could not find corporate property.</p> <p>Before the existence of such execution and certificate, payments made by a stockholder upon any debt of the corporation, though it might give him a claim against the corporation, will constitute no defence to a suit by a judgment creditor, upon whose execution the prescribed certificate has been made.</p> <p>The Act of 1851, c. 110, in relation to the liability of stockholders for corporation debts, was merely prospective.</p> <p>The treasurer’s certificate of a payment made by a stockholder towards corporation debts, is explainable by^ parol, especially to show the time of the payment, if in that respect the certificate be silent.</p> <p>In a suit against a stockholder, liable for corporation debts, the judgment against him may include the cost of suit, in addition to the amount of his stock.</p>

<p>A written contract is to be construed, and the meaning of the parties ascertained from an examination of all its parts. If some part appear at variance from another, the construction must be such as to harmonize the whole.</p> <p>The payment and acceptance of the price of a vessel are sufficient to> complete-the sale, as between the seller and the purchaser j without any bill of sale or other written instrument.</p> <p>Of the construction of an instrument, whether it constitutes a mortgage, or at contingent sale, or a contract to sell. .</p>

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Case, for injury done by altering the grade of the street in front of the plaintiff’s dwellinghouse.

<p>On Exceptions from Nisi Prius, Tenney, J., presiding.</p> <p>Complaint for flowing the complainaut’s land, by means of a mill-dam.</p> <p>The complaint charges that for more than three years the respondents had raised to an increased height, and maintained at such height, a dam across the Damariscotta river, to raise a head of water necessary for working their water mill, thereby overflowing and injuring the meadow and marsh land of the complainant. The respondents pleaded the general issue, and also by brief statement, that they “have a right to maiutain the dam described in the complaint, and to flow all lands that are thereby flowed, without any compensation.” And also, by a second brief statement, that the said dam has been kept up and maintained for more than one hundred years, to the same height, at which it existed when the complaint was made, whereby the respondents have prescriptive right, &e. The verdict upon these issues was against the respondents.</p> <p>Commissioners were then appointed, as prescribed by the statute. Their report referred to the Court the legal question in the alternative form, whether damages were to be assessed only for the flowing occasioned by the increased height of the dam or whether all the damages, occasioned by the dam, as it exists after having been increased in height, were to be assessed.</p> <p>If the assessment is to extend only to the damages occasioned by the addition made to the original height of the dam, the commissioners report: —</p> <p>1. That it is necessary for the profitable employment of the respondents’ mill, that their dam should be maintained at its present height, and that they should have the privilege of flowing the complainant’s meadow and marsh land, described in his complaint, during the whole of the year, except as hereinafter specified, and that no damage will be done to the complainant by such flowing.</p> <p>2. That from the first day of June to the fifteenth day of September in each year, the complainant’s land ought not to be flowed farther than it will be by keeping the water in the pond down to a certain iron bolt, designated as bolt A:</p> <p>3. That ño damage has been done to the complainant by the flowing of his lands described in his complaint so far as the flowing has been occasioned by the “ increased height” of the respondents’ dam.</p> <p>If, in the opinion of the Court, the duty of the commissioners in the premises was to assess all the damages occasioned by the'dam as it is, then the commissioners report: —</p> <p>1. That it is necessary for the profitable employment of the respondents’ mill, that their dam should be maintained to its present height, and that they should have the privilege of flowing the complainant’s meadow and marsh land, described in his complaint, during the whole of the year, except as hereinafter specified, and that no damage will be done to the complainant by such flowing.</p> <p>2. That from the first day of June to the first day of August in each year, the said land ought not to be flowed farther than it will be by keeping the water in the pond down to a certain iron bolt, designated as bolt B.</p> <p>3. That from the first day of August to the fifteenth day of September, in each year, the complainant’s said land ought not to be flowed farther than it will be by keeping the water in the pond down to a eeitain iron bolt, designated as bolt C.</p> <p>4. That the yearly damage heretofore done to the complainant by the flowing of his said lands are as follows: —</p> <p>For the year ending Sept. 1, 1846, nothing.</p> <p>“ “ “ “ “ 1, 1847, (twenty dollars) $20 00</p> <p>“ “ “ “ “1, 1848, ( “ “ ) 20 00</p> <p>“ “ “ “ “1, 1849, ( “ “ ) 20 00</p> <p>“ “ “ “ “1, 1850,( “ “ ) 20 00</p> <p>“ “ “ “ “ 1, 1851, (fifteen “ ) 15 00</p> <p>“ “ “ “ “1, 1852, ( “ “ ) 15 00</p> <p>Making in all the sum of one hundred and ten dollars. $ 110 00</p> <p>The complainant, being dissatisfied with the report, requested that a jury should be empaneled to try the case at the bar of the Court.</p> <p>At the trial before the jury, the report of the commissioners was introduced in evidence, with “ a vast mass of other testimony.”</p> <p>The respondents requested the Judge to instruct the jury, 1st, that the report of the commissioners was conclusive, unless impeached by the complainant; 2d, that the report of the commissioners is conclusive on the rights of the parties, unless in the judgment of the jury, it is impeached by the other evidence ; 3d, that in order to constitute such an impeachment, the jury must be satisfied, either that the said commissioners are censurable for their acts or omissions in relation to' the report; or, were guilty of some misconduct or partiality or undue bias or prejudice ; or, that they committed such gross error of judgment as would be evidence of such partiality, bias or prejudice ; or, that the complainant was deprived of a full, fair and impartial hearing by the proceedings of the commissioners. 4th, That the report is not impeached by evidence, tending merely to establish a result different from that of the report, and that the word “ impeached ” as used in the statute, means more than the word “ contradicted.”</p> <p>These requested instructions the Judge refused to give, but he instructed that, as the report of the commissioners was before them, (it being admitted for the complainants that there was no fraud therein,) they would be authorized to presume, in the absence of evidence to the contrary, that it was the result of an investigation on the spot, honestly and thoroughly made; that it was evidence of an important character, but was only evidence and not conclusive ; that they probably would regard it as true, until shown to be erroneous; that, if there was evidence of error, they would weigh that evidence, and when weighed, if satisfied the report was erroneous, so far they would not be bound by it; and that the report and all the other evidence were to be regarded^ as facts for their consideration.</p> <p>The ruling of the Judge upon the legal question submitted in the alternative form by the referees, need not here be presented, as the full Court expressed no opinion upon that question.</p> <p>The jury returned a verdict, that the complainant has been damaged by the respondents’ dam, in manner and form as he has alleged, and they assessed damages for the complainant in the sum of two hundred and fifty dollars.</p> <p>In IS46, no damages.</p> <p>1847, $75 00</p> <p>" 1848, 75 00</p> <p>" 1849, 40 00</p> <p>" 1850, 20 00</p> <p>" 1851, 20 00</p> <p>" 1852, 20 00</p> <p>$250 00</p> <p>They also found that the water may remain as high as the bolt A, during the whole year, except that from the first day of June to the fifteenth day of July, the water should be no higher than the bolt B, and from the fifteenth of July to the fifteenth of September the water should be no higher than bolt C.</p> <p>To the rulings of the Judge and to his refusals to give the requested instructions, the respondents excepted.</p> <p>1. The statute extends to mill owners no protection for erecting dams, except upon streams that are not navigable. It is not alleged in the complaint, that this stream is not navigable. For flowing lands by a data on a stream that is navigable, the damages are recoverable only at the common law, and not by a complaint of this kind. The proceedings, thus far, have, therefore, been merely void ; the defect- not having been cured by the verdict. The Court had no jurisdiction, and, therefore, it is not too late to take the objection, and the proceedings will be stayed. Farrington v. Bliss, 14 Maine, 423; Eddy’s case, 4 Cush. 28; 3 Johnson’s Cases, 107; Barnard v. Fitch, 7 Mete. 605; White v. Riggs, 27 Maine, 114.</p> <p>True, the statute of Maine allows no arrest of judgment in civil suits, but this is not a motion in arrest of judgment. A judgment, if rendered on such a complaint, would be reversible on certiorari, and therefore the proceedings may, on suggestion, be stayed or dismissed in any stage.</p> <p>2. The instructions, which we requested, as to the force and effect of the commissioners report ought to have been given. 11 Pick. 359; 11 Mete. 297.</p> <p>1st. The motion to dismiss or to stay proceedings is without foundation. Proceedings by complaint are not restricted to rivers not navigable. The statute on which the process is founded, c. 126, § 5, gives remedy by complaint to any person, sustaining damages in his lands, by their being overflowed by a mill-dam.</p> <p>But, if so restricted, and if the river was navigable, that fact would be merely matter in defence. The character of the river need not be alleged in the complaint.</p> <p>If, however, such an allegation be nesessary, it was but matter of form, and. is cured by the verdict; and if it be matter of substance, the defect is cured by the respondents’ brief statements, 1st, that they “ have a right to maintain said dam, described in said complaint, and to flow all lands that are thereby flowed, without any compensation ; thus, even' on their own construction, furnishing a resistless implication that the stream was not a navigable one, Stark v. Lyon, 9 Pick. 62; and 2d, that they had a prescriptive right for a user of more than one hundred years. The complainants do not deny the length of user of the dam, but claim for an increase in its height. But, if the stream was a navigable one, no prescriptive right of flowing could arise.</p> <p>2. The motion to dismiss, if- at all allowable, cannot be made in the full Court. It belonged to the Nisi Prius term, in Lincoln county.</p> <p>3. A motion of this kind is not allowable after the verdict. It is equivalent to a motion in arrest. But in civil suits such motions are prohibited by statute, and this is a civil suit. To call it a motion to dismiss or to stay proceedings, and not a motion in arrest, is deceptive.</p> <p>The respondents’ exceptions are in substance that the com- • missioners’ report is to be held decisive, unless impeached for fraud or some censurable conduct on their part; and the Judge at the trial refused so to instruct the jury.</p> <p>Such new interpretation cannot prevail. The statute does not give, nor did it intend to give, to the report, any higher character than that of “ evidence,” liable to be impeached as any other evidence may be.</p> <p>But a decisive answer to the new interpretation is that it is violative of the constitutional right of trial by jury. Constitution, Art. 1, $ 20; Burrill v. Marston, 12 Maine, 354; Cow-ell v. G. F. Manufacturing Co., 6 Maine, 282.</p> <p>The respondents contend that the report was impeachable only for misconduct by the commissioners. But whether the Judge’s refusal so to instruct was correct or not, is quite immaterial in this case, inasmuch as the jury found it was impeached as to the amount of damage. Therefore, from the withholding of the requested instructions, no injury could result to the respondents.</p> <p>There was a motion by the respondents for a new trial. It was argued at the same time with the exceptions. Upon that motion, the respondents contended that the verdict was so defective that no judgment could be entered upon it.</p> <p>1 st, Because it does not find whether the dam was necessary for the raising of a head of water, for driving the mill.</p> <p>2d, Because it does not find what portion of the year the land ought not to be flowed.</p> <p>3d, Because it does not find what is the amount of the yearly damages, subsequent to the filing of the complaint.</p>

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Assumpsit. The defendant owned a store in Newfield, and had a small lot of old goods remaining in it, which he authorized one John M. Thompson to sell for him. John M. Thompson then went to Boston, and purchased, upon his own credit, goods amounting to twelve hundred dollars.

On Exceptions from Nisi Prius, Howard, J., presiding. Bill in Equity to redeem a tract of land containing about one hundred acres. It appears by the bill, answers and proofs, that in 1837, Nathan W. Sheldon conveyed the tract to Lot Myrick and others in mortgage, to secure the payment of notes amounting to $1000. In 1842, Nathan W. Sheldon, by deeds of warranty, conveyed to Lemuel S. Hubbard two acres and to Joseph Stetson one acre and three quarters of the same land.

On Facts agreed. Case. The plaintiff owned a tract of upland and adjoining flats. It was bounded southerly by a bay of the sea. Two streets crossed it nearly parallel with the shore. His house and store stood upon the upper side of the upper street.

<p>The repeal of a penal statute defeats all pending prosecutions.</p> <p>Such repeal precludes the rendition of a judgment, althongh a nolo contendere had been pleaded prior to the repeal.</p> <p>If, subsequently to such repeal, a sentence be imposed upon such a plea, the proceedings may be reversed on writ of error.</p>

<p>On Exceptions from Nisi Prius, Shepley, C. J., presiding.</p> <p>Trespass for breaking and entering the plaintiff’s close, and carrying away therefrom several articles of his personal property.</p> <p>In March, 1848, the plaintiff married a woman who owned a farm, with a house upon it, and articles of furniture and other personal property.</p> <p>Testimony was introduced tending to show, that after the marriage and while the plaintiff and his wife were residing together in the house, the defendants entered and removed from the house the articles as mentioned in the declaration of the plaintiff’s writ.</p> <p>The defendants introduced evidence tending to prove, that the articles belonged to the wife before and at the time of the marriage, and that it was by her order that they entered the house and carried them away.</p> <p>The jury were instructed, that if the real estate entered upon and the articles of property taken, were the property of the wife before the marriage, and if the entry and taking were by her direction and under her inspection, the action was not sustainable. To that instruction the plaintiff excepted, the verdict having been against him.</p> <p>That the legal positions pertaining to this case may the more distinctly be understood, some extracts from recent statutes are here presented. —</p> <p>“ An Act to secure to married women their rights in property, passed in 1844.—</p> <p>“ Be it enacted, &c. Section 1. Any married woman may become seized or possessed of any property, real or personal, by direct bequest, demise, gift purchase or distribution, in her own name, and as of her own property ; (provided, it shall be made to appear by such married woman, in any issue touching the validity of her title, that the same does not in any way come from the husband after coverture.)</p> <p>“ Sect. 2. Hereafter, when any woman possessed of property, real or personal, shall marry, such property shall continue to her notwithstanding her coverture, and she shall have, hold and possess the same, as her separate property, exempt from any liability for the debts, or contracts of the husband.</p> <p>“ Sect. 3. Any married woman possessing property by virtue of this Act, may release to the husband the right of control of such property, and he may receive, and dispose of the income thereof, so long as the same shall be appropriated for the mutual benefit of the parties.”</p> <p>“ An Act, passed in 1847, to amend an Act ‘ to secure to married women their rights in property,’</p> <p>“Sect. 1. The Act ‘to secure to married women their rights in property,’ passed 22 March, 1844, shall be amended by striking out the proviso in the first section thereof, which proviso is hereby repealed, and inserting in lieu thereof at the end of the section the following words; ‘exempt from any liability for the debts or contracts of her husband;’ so that the section as amended shall be as follows; ‘ Sect. 1. Any married woman may become seized or possessed of any property, real or personal, by direct bequest, demise, gift, purchase or distribution, in her own name, and as of her own property, exempt from the debts or contracts of her husband.'</p> <p>“ Sect. 2. The said first section shall be subject to the proviso, that if it shall appear that the property so possessed, being purchased after marriage, was purchased with the moneys or other property of the husband, or that the same, being the property of the husband, was conveyed by him to the wife, directly or indirectly, without adequate consideration, and so that the creditors of the husband might thereby be defrauded, the same shall be held for the payment of the prior contracted debts of the husband."</p> <p>“ An Act passed August 10, 1848, in addition to 'an Act to secure to married women their rights in property.'</p> <p>“Sect. 1. Any married woman, who is seized and possessed of property, real or personal, as provided for in the Act to which this is additional, shall be entitled to the appropriate remedies, as authorized by law in other eases, to enforce and protect her rights thereto ; and she may commence, prosecute or defend any suit, in law or equity, to final judgment and execution, in her own name, in the same manner as if she were unmarried, or she may prosecute or defend such suit jointly with her husband. And she is hereby authorized to make and execute any bond or contract, or to do and perform any matter or thing, which may be necessary to the prosecution or defence of any such suit, but no arrest of' the person of any married woman shall be authorized under any execution, which may be recovered against her.</p> <p>“ Sect. 2. In all such suits, where the wife shall prosecute and defend in her own name, judgment shall be rendered and execution issued and enforced by or against her, in. the same manner as if judgment had been rendered for or against her before her marriage.</p> <p>“ Sect. 3. When any married woman shall die intestate, seized or possesssed of any property, real or personal, in her own name, exempt from the debts or contracts of her husband, the same shall descend or be distributed to her heirs; but any married woman may, by will duly executed, devise and bequeath any property of which she is, or may be hereafter so seized or possessed.”</p> <p>“ An Act amendatory, passed February 23, 1852.</p> <p>“ Any married woman who is or may be seized and possessed of property real or personal, as provided for in the Acts to which this is additional, shall have power to lease, sell, convey and dispose of the same and to execute all papers necessary thereto in her own name, as if she were unmarried, ■and no action shall be maintained by the husband of any such married woman for the possession or value of any property held or disposed of by her in manner aforesaid.”</p> <p>Act of April 26, 1852. — “Sect. 1. Hereafter, when any man shall marry, his property shall be exempt from any and all liability for the debts or contracts of his wife, made or contracted before marriage; but an action to recover the same may be maintained against such husband and wife ; and the property of said wife, held in her own right, if any, shall alone be subject to attachment, levy or sale on execution, to satisfy all liabilities for such debts and contracts, in the same manner as if she were unmarried.</p> <p>“ Sect. 2. In any such action, the wife may defend alone, or jointly with her husband; but no arrest of the person of such husband or wife shall be authorized upon any writ or execution arising under this Act.”</p> <p>1. By the common law, the rights of the husband in property of the wife were well settled and clearly defined.</p> <p>2. Prior to the marriage of the plaintiff in March, 1848, the “ Act to secure to married women their rights in property,” of March 23, 1844, and the Act additional thereto of Aug. 2, 1847, had been passed. . The alterations and additions in the latter Act do not affect this case. The former Act does not authorize a feme covert to sell, devise, lease or otherwise make any disposition of her property, so as to deprive the husband during his life of all benefit to be derived from it; and the common law, regulating the rights and duties of husband and wife, must be regarded as operative so far as it had not been changed by the provisions of the statute. Swift v. Luce, 27 Maine, 285. By the marriage of the plaintiff therefore, he acquired in the property of the wife, the right to its possession, use and enjoyment under the eommon law.</p> <p>3. This right was a vested right, an interest in property, which it was not competent for the Legislature, by any Act subsequent to the marriage, to take away. Statutes, therefore, passed since 1848, can impair none of the plaintiff’s common law rights. Kennebec Proprietors v. Laboree, 2 Greenl. 275.</p> <p>4. The control of the wife’s property implied by the 2d sect, of the statute of 1844, is a limited control, extending only to its defence and protection, and consistent with the right of the husband to a common enjoyment with the wife of its use and income. Act of 1848, c. 73; Swift v. Luce, 27 Maine, 285.</p> <p>5. The casé finds sufficient to warrant a jury in coming to the conclusion, that the wife had released to the husband the control of the property, which control it was not competent for the wife to revoke. This question should have been presented to the jury.</p> <p>The Act of 1847 has no application to the facts of this case. The Act of 1848 was subsequent to the marriage, and can therefore have no effect. The question therefore is solely upon the statute of 1844. That statute, being so widely in derogation of common law rights, is to receive a strict construction. To the statute itself, I make no objection. My objection is merely to the construction of it claimed by the plaintiff’s counsel.</p> <p>In view of the immense importance to domestic happiness, it is not to be supposed, that the Legislature could intend the entire removal from the husband of all oversight and control of the wife’s personal estate. It would at once degrade and discharge the marital relation, set the parties at variance, and in all cases facilitate, and in many cases require a separation. If the husband, from any misfortune become poor, she may deny him bread, and transfer him to the poor house, while herself luxuriating in wealth. He may be expelled from the house, and her paramour substituted to the possession. It is a divorce of the husband, without notice of the process.</p> <p>The construction, claimed by the defendants, with all its boasted tenderness and humanities, degrades the domestic relation and is fraught with mischiefs, which if not immediately developed, will leave terrific marks upon the next age.</p> <p>The point at issue has been already decided in Swift v. Luce, 27 Maine, 285. That decision shows, that the Act of 1844, (the only one applicable to this case,) did not authorize a feme covert to sell or dispose of her personal property, without] the assent of her husband; and that the only object of the law was to protect her property from liability to pay her husband’s debts.</p> <p>The Act of 1848, authorizing an action jointly by the husband and wife, clearly indicates that he had some rights in or control over her property.</p> <p>The Act of 1852 gives to the wife authority to dispose of all her estate. Does not this imply, that prior to that Act, she had no such authority ? Is it not a Legislative exposition of the meaning of the former Acts ?</p>

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Assumpsit. The suit was commenced in January, 1850, and was brought against Asa P. Hodgkins, Edward R. Sec-comb, Isaac Taylor aiM Stephen R. Griggs. Hodgkins entered no appearance to the suit; the other defendants appeared and defended. The plaintiff, in October, 1850. took the deposition of one Hall.

Petition for Certiorari. Certain persons describing themselves of West Bath, in Sept. 1852, presented their petition to the County Commissioners, setting forth that the selectmen of that town had laid out an alteration of a town way and reported the same to the inhabitants of the town at a meeting called to act upon its acceptance, and that the town unreasonably refused and delayed to allow and approve said alteration, and to put the same on record : by which said…

<p>Brom the performance of certain corporate acts by persons designated in a charter of incorporation, the existence of the corporation may be inferred, without record evidence of its first meeting or of its acceptance of the charter.</p> <p>Brom what corporate acts such an inference may be deduced.</p> <p>"When by a by-law of the corporation, its officers are to hold office for a year, and until others are chosen in their room, it seems unnecessary, in the warrant calling the annual - meeting, to insert “ that officers are to he chosen although another of the by-laws prescribes that such warrant shall “ specify the business to be transacted.”</p> <p>When the prescribed officers are elected without such specification in the warrant, and the corporation, by its acts, recognize the existence and authority of such officers, the election will be deemed valid.</p> <p>The by-laws of a corporation authorized its directors to manage all its prudential concerns, and the directors, by a document signed by them in that capacity, certified that the plaintiff had previously advanced a specified sum. for the corporation, which sum with its interest, was still due to him; Se Id, that upon such certificate an action may be maintained against the corporation.</p> <p>Such certificate is to have full effect as the foundation of a suit, notwithstanding the existence of a by-law, prescribing that the directors shall hold stated meetings and keep a record of their votes and doings.</p> <p>Such a by-law is merely directory, and does not impair the rights of others.</p>

On Report from Nisi Prius, Shepley, C. J., presiding. Trespass for taking and driving away several cattle from a farm occupied by the plaintiff and his wife. The farm with some other property belonged to the wife by a devise from her former husband.

<p>On Report from Nisi Prius, Tenney, J. presiding.</p> <p>Assumpsit upon a promissory note for $200, payable to the plaintiffs.</p> <p>In 1844, William H. Morse and two others conveyed land to the defendant, and took from him a mortgage of it to secure the purchase money.</p> <p>In 1845, they, by their deed in common form of a quitclaim, released to him all their rights in the land. Before the registry of that deed, Morse’s undivided part of the land was attached on two suits, of which the plaintiffs had the control, and within thirty days after the rendition of the judgments, (though not until after said quitclaim deed had been recorded,) the executions recovered in said suits, were levied on the attached estate. '</p> <p>After the expiration of the year, which the law allowed for redeeming, the defendant gave to the plaintiffs the note now in suit, and took from them a paper specifying that they had received two hundred dollars in full for the amount levied on the two executions, and thereby “ discharged all claims of said creditors under said levies.” This receipt was ante-dated, so as to show, upon its face, that it was given prior to the expiration of the year allowed for redeeming.</p> <p>The defence was, that there was no consideration for the note.</p> <p>The case was submitted for the opinion of the Court.</p>

On Exceptions from Nisi Prius, Tenney, J., presiding. Assumpsit for money had and received.

<p>Upon the erection of a building under a special contract, the contractor, though he may have departed from the contract as to the size of the building and quality of the work, yet if the building have been accepted, is entitled to recover for the labor and materials at the contract price, deducting so much as they are worth less on account of the departures.</p>

On Exceptions from Nisi Prius, Tenney, J. presiding. Assumpsit, to recover $115,11, the amount of articles furnished for victualing the brig Ellen Maria, and delivered to Capt. Hoyt, the Master. The defendants were the general owners of the brig in different proportions.

<p>The intention, of the parties to a contract, is to be regarded in its construction, and that intention is to be ascertained from the whole instrument.</p> <p>Where the parties to a suit pending in Court, agree in writing to refer it, i with stipulations that it shall he withdrawn, each party to pay his own cost; if one of the referees declines to act, the agreement becomes inoperative, and the action may stand for trial.</p> <p>And whether one of the referees refused to act, may properly be left “to the determination of the jury. .</p>

On Exceptions from Nisi Prius, Rice, J. presiding. Assumpsit, on a promissory note, signed by the defendant, of this tenor: — “ Bath, August 1, 1844. For value received, I promise to pay Franklin Glazier, Abner Coburn and William M. Rogers, (the plaintiffs,) or their order one thousand dollars in fifteen months and grace.” The execution of the note was admitted, and the defence was alleged payment.

<p>The discretionary power of the Court, to accept, reject, or recommit a report of referees, is only a judicial one, to be exercised upon consideration of the facts and circumstances of the case.</p> <p>The wishes of one of the parties, dissatisfied with the award, or the .willingness of the referees to have the case again opened and more fully considered, furnish no ground for rejecting or recommitting the referees’ report.</p> <p>"Where no new evidence is offered, and no prejudice, bias or mistake, on the part of the referees established, their award must be accepted.</p>

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Debt on a poor debtor’s relief bond. The debtor took the -oath prescribed by the statute, before two justices of the peace and quorum, one of. whom was surety upon the bond. There was evidence tending to show, that all objections to the justices were waived, and also evidence that this waiver extended only to the residence of the magistrate.

On Facts agreed. Assumpsit, to recover rent for the house occupied by defendants’ mother. On and previous to September 9, 1848, the defendants’ mother was occupying a house of the plaintiffs’, at the rent of $60 per annum. The plaintiffs, being solicitous about their rent, named the matter to defendants on that day. They then verbally promised to pay the rent during the time she should occupy the house. She continued till September 9, 1851.

<p>Iu cases of exceptions to a master’s report on a bilí in equity, it belongs to the excepting party to open and close.</p> <p>It is unusual to allow an amendment to the defendant’s answer to a bill of equity.</p> <p>Such an amendment will not be allowed, if it introduce a new ground of defence, existing and known to the defendant, when his answer was filed.</p> <p>-When the bill, answer and proof, each shows that a deed of conveyance, though absolute in its form, was intended merely to secure a debt or to indemnify against liabilities, it will, in equity, be treated as a mortgage.</p> <p>A party claiming to hold land under a sale for the payment of state or county taxes, must, in equity as well as at law, prove the facts necessary to establish its validity.</p> <p>The net avails of timber, taken by a third person, from land under mortgage, must be appropriated toward the extinction of the mortgage, if such taking was with the approbation of the mortgager and of the mortgagee, upon an understanding that such third person should so appropriate the avails.</p> <p>This rule of appropriation is not affected by the existence of a prior outstanding mortgage upon the land, if the prior mortgagee make no claim that the appropriation be made upon his mortgage.</p> <p>A master in chancery, commissioned to ascertain the amount due upon an outstanding mortgage of land, has no jurisdiction to adjudicate upon the titles to the estate mortgaged.</p> <p>The adjudication of a master in chancery, upon facts submitted to him, is , presumed to be correct.</p> <p>In order that such an adjudication should be set aside or reconsidered, for an alleged mistake or an abuse of authority, it must be clearly shown that such, wrong existed, and that equity requires its correction.</p> <p>A master in chancery is not bound to report the evidence upon which hie determination was founded.</p> <p>Errors of computation by a master in chancery may be corrected by the-Court, without a recommitment, at any time before the confirmation of his> report.</p> <p>The grantor and the grantee of land by a deed in form of a warranty, but by legal intendment merely an equitable mortgage,, may, after the discharge of the mortgage, be compelled in equity to release the estate to a person who had derived under the grantor a title legally subordinated only to such, mortgage.</p>

<p>On Exceptions from Nisi Prius, Hathaway, J., presiding.</p> <p>At a Court held in May, 1853, by adjournment from the March Term, 1852, a bill of indictment was presented to the Court, certified by D. S., as foreman, charging that the defendant had in his possession, at one time, ten counterfeit and forged bank bills, each of the denomination of three dollars, purporting to be signed in behalf of the President, Directors and Company of the Medomak Bank, and to have been issued by said Bank, he at the same time well knowing the same to be forged and counterfeit, and intending to utter and pass the same as true, &c.</p> <p>The defendant being arraigned, and having had the indictment read to him, replied in writing, that he ought not to be held to answer to the indictment, because it was not found by any twelve grand jurors, lawfully selected, empaneled and sworn ; that prior to the term of the Court, held in October, 1852, venires were duly issued for the drawing of thirteen grand jurors; that pursuant to said venires that number of persons, [naming them] were duly selected, to continue in that office for the term of one year; that they appeared before the Court at said term, and were then and there duly sworn and empaneled as the grand jury for one year; that at the term, by adjournment, in May, 1852, when the indictment was found and returned, eleven only of those grand jurors were present; that at that term three other and different persons, [naming them] were associated with the said eleven grand jurors; and that it was by a pretended grand jury, thus constituted, that the indictment was found and returned. Wherefore he prayed judgment of the indictment, and moved that the same be quashed.</p> <p>To this motion, presented in the nature of a plea in abatement, the prosecuting officer made replication in substance, that at the said term in May, two of the original grand jurors were absent, the one having left the State for a residence in Australia, and the other having removed and taken up his residence in another county of the State; that thereupon the Court issued a new venire for the drawing of three other grand jurors, who having been duly appointed under that venire, appeared in Court, and were duly sworn and, with the said eleven, were empaneled as the grand jury; and that it was by the grand jury, thus duly and lawfully constituted that the indictment was found and returned.</p> <p>The statements of the motion and of the replication, not being in conflict, the defendant was directed to answer over to the indictment, and he thereupon pleaded that he was not guilty.</p> <p>A trial was then had, and a verdict' was returned against him. Whereupon he moved that judgment be arrested, for the reasons already presented in his motion above stated.</p> <p>The motion was overruled. To that overruling he excepted.</p> <p>At common law, both grand and traverse jurors were summoned by order of the Court. If there were no statute, it is therefore plain that the formation of the grand jury was a legal one.</p> <p>The statute, whose exact language is so much relied on by the defendant, was but directory. 5 Sm. & Marshall, Mississippi, 654; 2 Cush. 149.</p> <p>Suppose a grand jury duly constituted of fifteen, and four of them die, must the county be without any administration of criminal Jaw ?</p> <p>By the law, a grand juror may be challenged. Suppose the challenge reduce the number to less than twelve. 2 Pick. 563 ; 9 Mass. 109.</p> <p>After an' indictment has been read, the mode of constituting the grand jury is not open to inquiry. The defendant by his counsel was present in Court during the proceedings of the grand jury, and took no exceptions. A party having opportunity to object and not ehoosing to object, waives the right. 15 Mass. 205; 5 Greenl. 333 ; .3 Greenl. 215; 4 Wend. 675 ; 1 Pick. 43, and note; 5 Mass. 435</p>

On Report, from Nisi Prius, Appleton, J., presiding. Trespass quare clausum. The writ contained but one count, for breaking and entering the plaintiff’s close, Aug. 31, 1852, and carrying away 50 loads of manure of the value of $ 100. The defendant pleaded the general issue, and filed a brief statement, that he occupied the premises and had so done for three years under one Philander Coburn, and entered and took the manure which was his own, as he had a right to do.

On Exceptions from Nisi Prius, Tenney, J. The substance of the disclosure sufficiently appears in the opinion of the Court. On the disclosure the supposed trustees were charged by the presiding Judge, and they excepted.

On Exceptions from Nisi Prius, Tenney, J., presiding. Assumpsit, to recover an account doe from Asa Pattee the defendant’s intestate. The writ is dated March 14, 1850. The defendant pleaded the general issue, with a brief statement of the statute of limitations, and of proceedings, in insolvency in the settlement of the estate of Pattee.

Exceptions. Tenney, J. presiding. Writ of Entry, for a part of lot No. 15, in Madison, tried on the issue of Nul disseizin. The date of plaintiff’s writ is Nov. 7, 1850.

On Facts agreed. Assumpsit, on a note of the following tenor: — Gardiner, Sept. 6, 1850. — For value received I promise to pay to the order of Levi Higgins the sum of one thousand dollars, in twelve months from date, at the Gardiner Bank, in Gardiner, interest after six months. “ Charles Baker.” The consideration of the note was for a quantity of lumber lying in Kennebec river at Richmond, which the payee refused to sell to Baker on his own responsibility, and Baker…

On Report from Nisi Prius, Hathaway, J., presiding. Assumpsit. The writ contained three counts. 1. For money had and received. 2. On an agreement to refer and award. 3. On the award. The plaintiff introduced in evidence, a receipt of the following tenor: — “ Bangor, April 20, 1849. Received of Co-burn Ireland §261,33, being amount due on his notes and mortgage to Chas.

On Report, from Nisi Prius, Tenney, J., presiding. Assumpsit, on a promissory note, payable to plaintiffs of order at the bank. At the term the action was entered, the defendants caused notice to be entered on the docket, that the plaintiffs’ appearance was called for. The counsel in answer to the call, stated that he received the note from a person claiming to be the lawful holder of the same, and was by him directed to bring the suit. His appearance was allowed.

On Report from Nisi Prius, Tenney, J., presiding. Case, against defendant, as late sheriff of Somerset county, for neglect to pay over money collected on an execution. The writ was dated Aug. 31, 1853. Defendant pleaded the general issue, and filed a brief statement, of payment of the sum collected to an administrator of the real owner of the judgment and execution. The plaintiff, in August, 1850, was appointed guardian of Abigail Badger, and gave the required bond.

On Facts agreed. Case against the sheriff for the default of his deputy, Barker, in neglecting to levy the plaintiff’s execution upon the property of one Laiton, which had been attached by Barker upon the writ. Barker had attached a vessel upon the stocks, by virtue of a writ in favor of one Huston against Laiton. He subsequently attached the same vessel on nine other writs.

On Exceptions from Nisi Prius, Rice, J., presiding. Assumpsit, upon a promissory note made to the plaintiff. The defendant relied on a release of the cause of action, contained in an instrument under seal, purporting to he an assignment by him for the benefit of his creditors, bearing date Nov. 16, 1850, and executed by the plaintiff and others.

On Exceptions from Nisi Prius, Rice, J., presiding. Covenant broken. Writ dated in 1851. The defendant’s testator, in 1837, conveyed land by deed jointly to Allen, Brown and Raclkley, with covenants of seizin, against incumbrances and for quiet enjoyment.

<p>On Report from Nisi Prius, Rice, J., presiding.</p> <p>Writ of entry for two pieces of land adjoining each other, and thus making one lot, in Chelsea. The demandant purchased one of the parts in 1823, and conveyed it to his son, Jonathan Stevens, in 1825.</p> <p>In 1827 he purchased the other part. In 1842 the whole lot was sold by the town collector to one Dutton for the payment of taxes upon it. Dutton, within the time allowed to the owner to redeem the land from the tax sale, conveyed the land to Patience Hart, one of the tenants, and the wife of the other. She paid her own money for it, enough to redeem the land. And in procuring that conveyance, she acted under the advice and with the assistance of the demandant, and in his presence.</p> <p>This portion of the land he now claims, upon the ground that the tax sale was not a .legal one, and therefore did not pass the title.</p> <p>The other portion of the land he claims to hold by inheritance from his son Jonathan, who, as he alleges, has deceased. •To prove that Jonathan was dead, he introduced testimony by which he attempted to show that Jonathan had been long absent, and had not been heard of for seven years before the bringing of the suit. That testimony is sufficiently adverted to in the opinion of the Court.</p> <p>The case was here withdrawn from the jury, the parties agreeing that if the Court should be of opinion upon so much of the evidence as is legally admissible, that the demandant has sustained his action, the tenants shall be defaulted ; otherwise the plaintiff shall become nonsuit.</p> <p>The Court to draw the inferences a jury might draw.</p>

On Report, from Nisi Prius, Wells, J., presiding. Held: and properly, that the retaining a cashier in office,, after a knomedge of Ms deficiencies, does not exempt his surety for previous defaults, within the limits of the bond. State Bank v. Chetwood, 3 Halst. 28; fay lor v. Bank of Kentucky, 2 J. J. Marsh. 568. For subsequent defaults, it seems that it would be an excuse of the surety.

<p>Writ op Error.</p> <p>In July, 1851, under the statute, c. 211, of that year, three voters of the city of Gardiner made written complaint to the Judge of the Police Court, against Barnett, the plaintiff in error, alleging on oath, that they have reason to believe and do believe, that William Barnett of said city of Gardiner in said county, now has and keeps spirituous or intoxicating liquors intended for sale, deposited in the building occupied by him and Michael Hayden and Mrs. Ganey, in the portion thereof occupied by them respectively, in which buildings the said defendant keeps a shop or store, situated on Water street, in said city, and occupied by him, said Wm. Barnett, partly for a shop or store as aforesaid, as also by the said Hayden and Ganey, (said Barnett not being appointed by the mayor and aldermen of said city of Gardiner as the agent thereof, to sell therein, spirits, wines, or other intoxicating liquors;) whereby said liquors have become forfeited to be destroyed, and said Wm. Barnett has forfeited the sum of twenty dollars, to the use of said city and costs of prosecution.</p> <p>A warrant having been issued on that complaint, Barnett appeared before the Judge, and pleaded that he was not guilty of the charge of having kept or having deposited any liquor as described in said complaint, for sale, and making no claim to the spirituous liquors seized, was adjudged guilty, and ordered to pay a fine of twenty dollars and costs of prosecution taxed at $11,44, from which judgment and order the said defendant claimed the right to enter an appeal at any time within twenty-four hours, which was granted ; the sum in which he was ordered to recognize being $100, as principal, with sufficient sureties in a like sum. He refused so to recognize, protesting against giving sureties; the Court adjudged liquor forfeited. Barnett not having produced the sureties nor recognized himself as principal, within twenty-four hours after the decision and sentence, his appeal was not allowed and a mittimus for his imprisonment was issued.</p> <p>It is to reverse that judgment, that this writ of error is brought.</p> <p>presented to the consideration of the Court many parts of the. proceedings; which he contended were erroneous.</p> <p>Among other matters he cited State v. Robinson, 33 Maine, 564, and State v. Gurney, 33 Maine, 527, to show the complaint to be totally invalid, because not averring that the liquors were intended for sale, in the city of Gardiner.</p> <p>It is a fixed principle that no writ of error can lie, where the party had a right to appeal. 4 Mass. 678; 6 Mass. 4; 9 Mass. 228 ; 3 Mete. 373.</p> <p>In this case Barnet had the right of appeal.</p> <p>— That principle of law has many exceptions, and it is never applied to criminal suits. 15 Pick. 234; 12 Met. 9 ; 33 Maine, 250.</p>

<p>On Facts agreed.</p> <p>The plaintiff brought an action against Porter & Benson as principal defendants, and against the Androscoggin and Kennebec Railroad Company as their trustees.</p> <p>About the same time, several other suits, brought by different plaintiffs, were pending against Porter & Benson and against the Railroad Cotn]>any as their trustees.</p> <p>In each and all of these suits the Company made the same disclosure, as follows; — •</p> <p>And now the said trustees come into Court and under oath submit themselves to examination, and say that, prior to the service of the plaintiff’s writ on them, the principal defendants had entered into a contract with them for the grading and masonry of the 14th, 15th and 16th sections of their, road, a copy of which contract is made part of this disclosure. At the time of the service of the writ upon the trustees, there was due to the principal defendants the sums following, to wit j for work performed in Nov. last, 75 per cent, of which was due from 1st to 10th December, $200,00</p> <p>For do., do., in December last, 75 per cent of which was due from 1st to 10th January, 1602,42</p> <p>$1802,42</p> <p>The engineer’s certificate of work done in December, 1848, was made out, January 1st, 1849.</p> <p>At the time of the disclosure, Porter & Benson had not completed their work under their contract, and the trustees wish to present the question to the Court, whether they can be holden for the'twenty-five per cent, reservable under the contract, until the whole work is completed, as in the event of its not being completed, all that should be due to the defendants would be forfeited to the company.</p> <p>Prior to the service of the plaintiff's writ on them, they had been summoned as trustees of the same defendants in action James B. Neal against them, which writ was served on them December 2, 1848.</p> <p>The contract referred to in the disclosure, so far as it may-influence this case, was of the following import: —</p> <p>It specified the quantity and quality of the work to be done for the railroad company upon the three sections of the road, and then provided that payment should be made by the company for the same as follows: —</p> <p>“The payments within the limits of this contract shall be made as follows: — between the first and tenth day of each month, after the commencement of the work, the said engineer shall estimate the quantity of work done, and give a certificate of the same; and upon the presentation of said certificate to the treasurer of said company, three fourths of the amount then due for work specified in said certificate, shall be paid to the said party of the first part, as aforesaid. Provided, however, that no estimate shall be made, or certificate given, within one month after the commencement of the work; and provided, also, that no certificate for a less sum than five hundred dollars shall be given, except at the discretion of the engineer; (and when the whole of the work hereby contracted for, shall have been accepted agreeably to contract, the balance due shall be paid to the said party of the first part, their heirs, executors, administrators, or assigns,) and the engineer shall be the sole judge of the quality and quantity of all the said work herein specified, and from his decision there shall be no appeal.</p> <p>“ And it is hereby further agreed, that if the said party of the first part shall not, on their part, well and truly perform all the covenants herein contained, said engineer may dismiss them from the work, and in that event, this contract shall become null and void; and any balance for work done on. said road, which would have been due the said party of the first yart, shall be forfeited and become the right and property of the company.</p> <p>On that disclosure, in one of the several suits above referred to, the District Court adjudged the Rail Road Company to» be chargeable as trustees. To that adjudication they excepted, and by agreement all the other suits were continued in the District Court to abide the decision on those exceptions. The adjudication of the District Court was affirmed, after which judgments were rendered in all the suits against Porter and Benson as principal defendants and against the Rail Road Company as their trustees.</p> <p>The following schedule describes a portion of the suits; there beiug many others, not necessary to be presented : —</p> <p> </p> <p>Upon all those judgments executions were issued, aud upon them demands were duly made upon the trustees to pay over the funds in their hands. This action is a scire facias against the trustees.</p> <p>For the purposes of this investigation, it is admitted, that since the making of the disclosures, Porter & Benson have completed their contract.</p> <p>The whole amount of funds in the hands of. the trustees, at the time of the service of the writs on them, (if they are to be charged at all,) is less than the judgments recovered in this and other suits against said Porter &. Benson and said company as trustees.</p> <p>Upon these facts the Court is to render such judgment in this suit, as the law requires.</p> <p>And the parties, upon the facts agreed, wish to present to the Court the question: — “ In what order are the plaintiffs in the actions mentioned in the schedule to participate in the funds disclosed ; and whether any of the actions served on the trustees prior to Jan. 1st, 1849, cam (under the contract with Porter & Benson with the company) hold any of the sums due for work performed by them in the month of Dec. 1848?”</p> <p>The disclosure shows that seventy-five per cent, of the labor performed in the month of November, 1848, due and unpaid at the time the defendants were originally summoned as trustees, amounted to $200. — Add to this the 25 per cent, not included, and we have $266,66, as the full amount due for labor done in November. Applying the same rule, we have $2136,61, as the whole sum due for labor performed in the month of December, so that the whole sum disclosed for November and December is $2403,27.</p> <p>The amount of the several judgments specified in schedule is $2415,74. So that the amount of all the judgments recovered against the defendants as trustees, only exceeds the amount of funds disclosed by them in the trifling sum of $12,47. Interest has been taxed upon the several sums recovered as damages, from the date of the writs in each case, and it should also be taxed on the sums disclosed by the defendants. They have had the use of the money, which by the terms of their contract, should have been paid in the months of December, 1848, and January, 1849. They still resist payment and should, at least, be charged with interest on the funds admitted to be in their hands, from the time they were demanded on the several executions issued on the judgments specified in the schedule.</p> <p>Should it be said, that the 25 per cent., which by the terms of the contract was not payable until the completion of the work, could not be held by attachment, because it was liable to be forfeited by non-performance on the part of Porter & Benson, it may be answered, that the case finds that there was no forfeiture, but that the work was completed in pursuance of the contract; and its completion by Porter & Benson, may quite as properly enure to the benefit of their attaching creditors, as that their neglect to complete, should defeat such attachment, or decrease the sum to be holden under the same.</p> <p>The liability of the defendants as trustees, under their contract with Porter & Benson, is no longer an open question.</p> <p>It has been judicially settled, that the defendants are liable to the plaintiff as trustees, under the contract. The main question now to be settled is, for what sum are they liable, and how is that sum to be divided and appropriated, as between the different attaching creditors?</p> <p>It is submitted, that the rights of creditors here are to be determined as in oiher cases of attachment, by their vigilance. They are to hold by priority of attachment, and the funds in the defeudents’ hands are to be distributed among them upon that principle.</p> <p>It may be contended, that the estimate of the quantity of work done must have been made by the engineer of the company, before any attachment could hold the proceeds of labor performed. • That is to say, that the amount due for labor, done in November, could not be attached until such estimate had been made and a certificate thereof given, providing it was done between the 1st and 10th of December following, according to the contract. If this view were adopted, it could not affect the attachment of the plaintiff in this suit, because the case does not show that any estimate or certificate for work done in the month of November, 1848, was ever made or given. Nor does it show that the whole amount of labor done in the month of November was disclosed; nor that that was the first month’s labor performed. Evidently the sum disclosed was not the whole labor of that month, nor was that the first month’s under the contract.</p> <p>The attachment of Neal was first made, and upon the above hypothesis he would hold nothing under it. Being made Dec. 2, 1848, it was too early to hold the funds due for labor done in November, and the attachment in this case having been made Dec. 30, 1848, would be satisfied out of the earnings of November.</p> <p>Again, the estimate was not only to he made and a certificate given, but that certificate was to be presented to the treasurer of the company beiore payment was to be made j and if it were necessary that either of those several acts should have been done, before a valid foreign attachment would lie, it was as essential that there should have been a demand of payment, as that the estimate and certificate should have been made and given; no such demand was ever made, and if material, none of the thirteen attachments enumerated in schedule can hold. And further, if this were a correct position the defendants could not have been charged as trustees at allf under their contract.</p> <p>But'! submit that a just and fair construction of that contract, does not lead to any such conclusions. The liability of the company to pay for three-fourths of the labor done while the work was progressing, did not depend upon any condition or contingency, but was absolute,</p> <p>• The ueglect or refusal of the engineer to make an estimate or certificate could not defeat the right of Porter & Benson to recover. What they had done, was due them at the price agreed upon, as the labor was performed; and was payable between the first and tenth of each month.</p> <p>The only effect of the survey was to render the sum fixed and certain, that sum the attaching creditors are to take in the oider of their attachments, and the admission of the defendants in the language of their disclosure is, that at the time of service in the original action, the sum of § 1802,42 was due and unpaid.</p> <p>The case would seem to come completely within the letter of the Revised Statutes, c. 119, § 87, by which any money or other thing due the principal defendant, although payable, at a future time is made attachable by trustee process, although the trustee shall not be compelled to make payment or delivery until the time appointed by the contract. The work under the contract in this case was completed on or before July 4, 1849, and the money became payable long before the commencement of this suit.</p> <p>By the disclosure $200 was earned in Nov. and $1602,42, in December.</p> <p>The defendants can be charged for three quarters only of these sums.</p> <p>1st. Because it was contingent whether the other quarter would ever become due.</p> <p>2d. Because by the terms of the contract this quarter was to be reserved, to secure the performance of the contract on the part of Porter & Benson.</p> <p>Neal, who attached December 2, and whose judgment was for $184,61, is entitled to the three quarters of the amount earned in November.</p> <p>The plaintiff, Williams, has no claim to this fund till the prior attachment is satisfied, and it takes all.</p> <p>The plaintiff takes no part of the sum earned in December.</p> <p>1st. Because when he attached, it was contingent whether Porter & Benson would ever be entitled to any pay for that mouth.</p> <p>Williams’s suit was served on the trustees December 30. At that time Porter &. Benson could have maintained no actiou.</p> <p>2d. Defendants were by the contract to have the work estimated once a month. If Williams can hold defendants it would be incumbent on them to have the work estimated as often as trustee process was served on them. Dwvnal v. Howe, 30 Maine, 384; Robinson v. Hill, 3 Mete. 301. Williams, therefore, can have no part of this fund.</p> <p>If there be an uncertainty as to the amount of the trustees’ liability the construction will be more strongly against them. I submit that the labor was done by the mouth, and that the Rail Road Company might have been sued for it at the end of every half month.</p>

<p>On Facts agreed.</p> <p>Action of Dower.</p> <p>The statement of facts alleged a sufficient ground of action, if the construction, given to the will of the testator by the demandant, was correct.</p> <p>By his will, the testator gave all his personal property to the demandant, and all the rents and profits, and sole management and control of all his real estate (excepting what was therein bequeathed) until his youngest child should arrive at 21 years.</p> <p>To this clause was added —■ “ It is however distinctly understood, that it is not my wish or intention in any event, to deprive my said wife (demandant)' of the right of dower in any of my said estate (except as above excepted) which she would be legally entitled to, were I to die intestate.”</p> <p>He then directed his estate, when his youngest child became of age, to be divided among his children, of whom the tenant was one, excepting the dower as aforesaid,, and made one specific bequest of real estate.</p> <p>Subsequently the testator made a codicil, by which he revoked and altered his said will so far as to give full force and effect to the several devises and bequests made by his codicil, and so far as the provisions of the will were inconsistent with the provisions of the last instrument.</p> <p>In another provision, he revoked that part of the will relating to the tenant, and devised to him and his heirs, the tract of land described in demandant’s writ.</p> <p>The codicil contained several devises and bequests to demandant, “ in addition to the provisions made for her, and in addition to the several devises, bequests and legacies made and given to her by his said last will.”</p> <p>I. The plaintiff having accepted the very liberal provisions made for her in the will of her husband, is .not entitled to dower in his lands “ unless it appears by the will that the testator plainly so intended. R. S. c. 95, § 13.</p> <p>The testator expressly excepts from his estate out of which he intends his wife shall be endowed, “ what is herein bequeathed.” The words “ except as above excepted,” can only refer to the exception in the former part of the same clause, where he gives to his wife the control and management and rents and profits of all his real estate, “ excepting what is herein bequeathed.” If the land in which the dower is claimed was so bequeathed, she is barred of her dower in it by the terms of the will.</p> <p>2. Whatever questions may arise in relation to the plaintiff’s right of dower in other lands of the estate under the first will, all uncertainty in regard to the defendant’s land in which dower is claimed, is removed by the codicil. By this instrument the defendant’s land is brought within the exception in the second clause of the will, and is as much entitled to exemption from dower, as either of the specific devises made in the will.</p> <p>The devise to defendant purports to convey a perfect title without reservation or incumbrance, and must be construed “ to convey all the estate of the devisor therein which he could lawfully devise.” R. S. c. 92, § 26.</p> <p>To bar the demandant’s claim of dower, it must appear, on a fair construction of the whole instrument, that such was the intention of the testator. R. S. c. 95, § § 11, 12 & 13. The intention of the testator must be gathered from the language used by him in making his will.</p> <p>No devise, bequest or legacy is given to the demandant in lieu of dower. “ So far as such provision in favor of the wife is not distinctly expressed to be in lieu of dower, it is immaterial whether it is liberal or otherwise. In the codicil the devises to demandant are all in addition to those made by the will.</p> <p>By the use of these expressions, the testator clearly negatives the idea that it was his intention, that any or all the specific devises made to his wife, were made to her “ in lieu of dower in his real estate.</p> <p>The specific devise to the tenant, is made from what, under the provisions of the will, might have been a part of the residuary estate to be distributed according to the terms of the third clause thereof, which is clearly subject to dower. In that specific devise to defendant, nothing is said about its being made discharged of dower, and of course the devise could have no greater effect than a deed of quitclaim, or a grant without covenants of warranty, neither of which, unless joined in by the wife, could operate a conveyance or discharge her claim of dower, directly or by way of estoppel. The provision in R. S. c. 92, § 26, does not enlarge the power of the testator, but simply establishes the rule of construction to be applied to devises.</p> <p>The question then arises, what is embraced in the words (“ except as above excepted”) used in the will. This expression follows the provision of the second clause, giving to the plaintiff the control and management of the real estate, until the full age of the youngest child, with the rents and profits, and applies to the appropriation of a certain portion of the rents and profits, to the payment of certain contingent legacies, for which no other specific mode of payment is made by the will. To such an appropriation the language “ herein bequeathed” properly applies. The word “ bequeathed” is not the proper term by which to pass the title to real estate, and is not considered as having the same import with the word devise, in any case, except when it cannot by its connexion in the sentence be applied to personal estate. Here used, it most clearly applies to the rents and profits to accrue, and not to the real estate from which the same are to be derived. This construction does not require any change in the proper meaning of the word “ bequeathed,” while the application of it to the specific devises of the parts of the real estate would require such a change. That these words have the meaning we attach to them, also appears from the subsequent general recognition of the widow’s right of dower by the will.</p> <p>The testator gives to his wife all the personal property, “ except such part thereof as may necessarily be disposed of for the payment of his just debts as aforesaid.” And he also gives her, in addition to other devises, &c. dower in all his “estate,” (except as above excepted,) that is, with the same exception applied to the real estate disposed of for the payment of debts as is made in regard to personal property so disposed of.</p> <p>The effect of accepting the provisions in the will is given by statute, and not by the testator. The provision for the widow is presumed to. be in lieu of dower unless the contrary is clearly expressed.</p> <p>The addition to the provisions in the will referred to in the codicil are explained by the testator to be in addition to the “several devises, bequests and legacies.” Dower is neither.</p> <p>According to plaintiff’s reading, the testator desired that his widow should have all the rents and profits of his real estate, not “excepting what is herein bequeathed,” but excepting what is appropriated to the payment of legacies, &c., making the exceptions apply to rents, &e., and not to real estate. The objection to that reading is that no bequest of the rents and profits is made except to plaintiff; neither are they set apart and appropriated as such to the - payment of debts, &c. The testator is made to say that his wife shall have all the rents, &c., except what is herein bequeathed for the payment of debts, &c. A bequest is a different thing from a designation or appropriation for such purpose, and there is nothing in the connection to warrant such a perversion of the word. A bequest is a testamentary gift, and for all that I have learned may as well be employed in the trails-mission of real as personal property. In other parts of the will and codicil the word is used for that purpose. The testator bequeaths a house and land to Mary Marshall Dow; to John Randolph, $500, in addition to land devised and 5e-queathed by the will; to defendant 25 acres of land in lieu of bequests which was only of real estate, and throughout the will and codicil the word is used in that sense. The plaintiff is therefore compelled to sustain a forced and unnatural construction of the will by an unwarrantable perversion of the meaning of words.</p> <p>The opinion of the Court was drawn up by</p>

On Report from Nisi Prius, Rice, J., presiding. Assumpsit. The Kennebec Log Driving Company are a corporation.

On Facts agreed. On Jan’y 11, 1849, an action in favor of the plaintiffs was pending against W. & H. Stevens, upon the following notes and drafts, on which said W. & H. Stevens were liable, viz.: Three notes signed by them as principals, and by the defendant’s testator, as surety; — A draft made by J. O. P. & F. Stevens for $810,28, accepted by W. & H. Stevens, and indorsed to the plaintiffs ; A note made by J. O. P. Stevens for $1200-, payable to W. & H. Stevens, and by…

<p>Bersons summoned as trustees to the principal defendant are parties to the suit.</p> <p>“¡they are parties adverse to the plaintiff.</p> <p>A creditor brought two separate suits against different persons. In one of the suits, he summoned trustees. He then proposed in writing to another creditor of the same defendants, that he would discharge his said claims, upon receiving, among other things, “ an obligation from the adverse parties to forbear any suit or trouble to him on account of his proceedings against them.” — Meld, that an instrument signed by the defendant in one of said suits, containing, first, a formal receipt in full of all demands, and secondly, an agreement that “ neither party ” should be entered in the suit against the other defendant and trustees, does not constitute the obligation contemplated in the plaintiffs’ written proposal.</p>

<p>By R. S. c. 32, § 1, mode 2, “ legitimate children shall follow and have the settlement of their father, if he have any within the State, until they gain a settlement of their own; but if he hare none, they shall in like manner follow and have the settlement of then- mother, if she have any.”</p> <p>If the father of the pauper never had any settlement in the State, and has voluntarily and absolutely abandoned and deserted his wife and left the State; while he is living, she can gain no settlement independent of her husband in her own right.</p> <p>And if she marry another illegally, while her first husband is living, she can acquire no rights by residence under that association.</p> <p>But her settlement, at the time of her marriage, is not lost or suspended by marrying one having no settlement in the State. (</p> <p>Where the mother of the pauper at the time of her marriage lived with her father, who had a settlement in the town where they lived, this will not authorize the Court to infer that the mother had a derivative settlement from her father.</p>

<p>On Facts agreed.</p> <p>Debt, on a bond given by Joseph Morse, the principal, for release from imprisonment on mesne process, in an action of tort, in accordance with § 17, c. 148, R. S.</p> <p>Judgment was rendered in that action against Morse, which has never been paid, nor did he within the time set forth in the condition of the bond, cite the creditor, or make any disclosure.</p> <p>The case was submitted to the Court for a legal decision.</p> <p>The bond is such as is authorized, when the arrest is made on mense process founded on contract, under provisions of § 2, c. 148, R. S.</p> <p>The action on which this bond was given was not founded on contract, and the arrest was not made in pursuance of the provisions of the above section.</p> <p>The arrest was made under <§> 9, which authorizes the writ to issue against the body of defendant, and that he might be arrested and imprisoned, or give bail, as provided in c. 114.</p> <p>The bond taken, was not the bond authorized and required by § 9, c. 148. This bond required other and different duties of defendant and imposed different penalties.</p> <p>The bond authorized by § 17, is given as an additional privilege or right, to a person arrested on mesne process, founded on contract.</p> <p>By sections 3, 4 and 5, provision is made for disclosure of such person, and by § 7, he may be discharged from arrest upon such disclosure ; and by the 17th §, he “ may also be released from such arrest by giving bond.”</p> <p>Thus, a person so arrested, may procure his release by submitting himself to examination, &c. or he may also, in like manner, be released by giving bond.</p> <p>And this provision is made for a person who stands to the plaintiff in the relation of debtor. It is a process for the relief of poor debtors. It is based upon the idea of what power a creditor should have over his debtor, and the specific relief a debtor should have when the creditor is pursuing him with legal process.</p> <p>He may disclose before the magistrates, and procure his release from arrest, or he may give bond that he will disclose after final judgment, and in like manner be released.</p> <p>The bond required by § 9, is distinguishable from this as a common bail bond, the primary meaning of which is, a specialty, providing for the appearance’of the defendant at Court. Bouv. Law Diet., “Bail Bond.”</p> <p>It is also to be taken to the sheriff or officer serving the process.</p>

<p>By § 16 of e. 113, of R. S. it is enacted, that whenever in any suit against any administrator, it shall appear that he has neglected or refused to account, upon oath, for such property of his intestate, as he has received, after he has been cited by the Judge of Probate for that purpose, execution shall he awarded against him, for the full value of whatever personal property of the deceased has come to his hands, without any discount, abatement or allowance for charges of administration or debts paid.</p> <p>Whenever the default contemplated by this section has been committed by an administrator, a suit is maintainable against his sureties upon the administration bond.</p> <p>And the amount of the personal property returned in the inventory of the estate, is prima facie evidence of the sum for which execution shall be awarded against them.</p> <p>If the sureties for such default are prosecuted in separate suits, execution will be issued for the full amount of the personal estate of the intestate in each suit, but satisfaction only in one suit may be obtained.</p>

<p>Where evidence is introduced on trial, Without objection, as to the terms of a vote passed by a proprietary, and no question is raised concerning them, the presiding Judge may rightfully instruct the jury as to the effect of such vote.</p> <p>Sut if any question arises of what in truth were the terms of the vote, that fact is determinable only by the jury.</p>

<p>Where conflicting testimony upon the question at issue is submitted to the jury, the Court have no authority to set aside the verdict, unless it manifestly was found from prejudice, bias or improper influence, or by a mistake of the facts or law of the case.</p>

<p>On Pacts agreed.</p> <p>Assumpsit, for money had and received.</p> <p>In October, 1851, the Kennebec & Portland Rail Road Company borrowed of the plaintiffs five thousand dollars, and gave their note for the same on three months, and at the same time caused the Portsmouth & Portland Rail Road Company to issue to the plaintiffs a certificate in the usual form, of fifty shares in the capital stock of that company.</p> <p>On the first day of May, 1852, the plaintiffs held the note aforesaid, and the said shares by that arrangement, and, in Oct. 1852, sold said shares at private sale and applied the proceeds to the pa3^ment of said note.</p> <p>While the bank held said shares, the dividends upon them were paid to the Kennebec & Portland Rail Road Company.</p> <p>It was agreed, if parol evidence was admissible to show the fact, that at the time the note was given, the said shares were transferred to, and held by the plaintiffs as collateral security for the payment of said note, and for no other purpose, with power to sell the same and to collect the note therefrom, if not otherwise paid to the satisfaction of the plaintiffs.</p> <p>On the first of May, 1852, the clerk of the P. S. & Portsmouth Rail Road Company, notified- the assessors of Augusta of the ownership by the plaintiffs o.f the shares aforesaid, and in consequence of said notice, they assessed the bank as owners thereof, and the stockholders in the bank were taxed without any diminution in consequence of the assessment of these shares.</p> <p>The plaintiffs refused to pay the tax thus- assessed on demand of the collector, and a warrant of distress, in due form, was put into the hands of a constable of the city, with instructions to collect the same by distraint.</p> <p>Upon the call of such officer, the plaintiffs-paid said tax and cost thereon under protest, and to prevent the seizure and sale of their property.</p> <p>This action is brought to recover back said tax and costs.</p> <p>If the Court should be of opinion, that the plaintiffs were liable by law to be assessed for said shares, a nonsuit is to be entered ; otherwise the defendants are to be defaulted.</p> <p>1. The provisions of law to govern the assessors are found in chap. 159 of Laws of 1845.</p> <p>By § 4, “all shares in moneyed corporations” are classed as personal estate.</p> <p>By § 9, “all personal property shall be assessed to the owner, in the town, where he shall be an inhabitant on May 1st,” &c., except in certain cases, viz; “machinery and goods” belonging to any corporation shall be assessed to such corporation, in the town where such machinery and goods are situated or employed.</p> <p>But shares of stock are not within the exception, and fall therefore under §§ 9, 10.</p> <p>“ The owners” are the stockholders, and all their personal property for the purpose of taxation, is represented by the shares of the several shareholders, who are taxable for them “ in the towns where they reside.” 5 Greenl. 133 ; 10 Mass. 516.</p> <p>2. A corporation, eo nomine, is not liable to be taxed for any of its personal property, by the general terms of said Act. Sect. 2, does not name them among the subjects of taxation.</p> <p>Sect. 5, in its exemptions, does not exempt corporations, as such, but only the property of certain corporations.</p> <p>Only in the particular case provided for in § 9, is a corporation,” as such, made a subject of taxation. Thus, for “ real estate” and for “ certain personal property,” a corporation, as such, is to be taxed.</p> <p>The phrase in § 2, “ personal property of the inhabitants of this State,” does not refer to corporations. 10 Mass. 517.</p> <p>3. The provisions of clause 2, of <§><§> 10 and 11, show that no intention existed to tax property twice.</p> <p>As to admissibility of the evidence that the shares were held by the plaintiffs as collateral, I refer to Heed v. Jewell, 5 Greenl. 96; Smith v. Tilton, 1 Fairf. 350; 9 Wend. 227; 14 Wend. 66.</p> <p>1. By § 9, of c. 159, of the laws of 1845, all personal property shall be taxed to the owner in the town where he shall be an inhabitant on the first day of May of each year.</p> <p>By § 2, of c. 165, of the same laws, shares in rail road companies are declared to'be personal property and taxable as such, to the owners in the places where they reside.</p> <p>By § 13, of c. 1, of the R. S. the word person, in the R. S. and in all subsequent statutes, “ may extend to and include bodies politic and corporate, as well as individuals.”</p> <p>Who were the owners of these fifty shares in the capital stock of P. S. & P. R. R. Co. on the first day of May, 1852? The certificate for them issued to the bank in the usual form on the 27th October, 1851, and was absolute and unconditional on its face, and the bank so held them on the first day of May, 1852, for all legal and practical purposes. The bank then were the owners, and parol evidence is inadmissible to show, that, at the time the said certificate issued, any thing different was intended from what the papers, made at the time, indicate.</p> <p>2. By § 13, of c. 76, of the R. S. the clerks of corporations are required on oath to return to the assessors of any town where any stockholder may reside, the name of the holder and the number of shares held by him, “ and such returns shall be the basis of taxation on said property.”</p> <p>The case finds that the assessors of Augusta for the year 1852, assessed the tax complained of on those shares, in accordance with the return which was sent them by the clerk of the P. S. & P. R. R. Co. This the law last cited required them to do; how can that be illegal which the law enjoins ?</p> <p>This return is the only evidence the assessors are allowed to have of the ownership of these shares; in other words, it is conclusive upon them, and the law is imperative and peremptory, that it shall be the basis of taxation. Parol evidence or any other is therefore inadmissible, to change the law or affect the assessors in the discharge of their duties.</p> <p>3. Nor is the argument, that if this tax be legal the capital stock of the bank will be twice taxed, a sound one. In the first place it is not true in fact. At the time the tax was assessed, these shares did not form any part of the capital stockn of the bank. The note, which the Ken. & Port. R. R. Co. gave to the bank for the money borrowed, did represent so much of the capital stock of the bank, but these shares were separate and distinct property and liable by law to be taxed to the owner, whoever or whatever he might be, as much as any other description of personal property. If an individual had been the holder he could not have escaped taxation; why then should the bank ? If the bank choose to become the owner of taxable property under such circumstances, it must take it, cum onerc, with the liability to be taxed which rests upon it.</p>

On Exceptions from Nisi Prius, Rice, J., presiding. Indictment, found at the March term, 1853, for the crime of adultery.

On Exceptions from Nisi Prius, Rice, J., presiding. Assumpsit, on a promissory note. When the plaintiff proposed to read the note, the defendants’ attorney objected, without proof of the signature, but would not say he was specially instructed to deny the genuineness thereof. The Court overruled the objection, and permitted the note to be read to the jury.

On Exceptions from Nisi Prius, Rice, J., presiding. Assumpsit, on a promissory note of the following tenor: — “ Gardiner, July 14, 1849. “ For value received, I promise to pay Clays & Dinsmore or order seven hundred and twenty-five dollars' and sixty-seven cents, in four months. “ John Kelley, 2d.” On the back of the note was this indorsement, “ Responsible without demand or notice, Clays & Dinsmore,” and above this was the name of “ William Wildes,” the defendant; also…

On Exceptions from Nisi Prius, Rice, J., presiding. Writ or Entry. The demandant conveyed a farm, lot No. 45, to the tenant, who at the same time re-conveyed it in mortgage. Upon this mortgage the action is brought.

On Facts agreed. The defendant is executor of the last will and testament of Isaac Smith, late of Hallowed, deceased. The will was approved and defendant entered upon his trust. Said Smith, was, at the time of his death, a co-partner with the plaintiff and one Richard F. Perkins. The surviving partners filed in the probate office of the county of Kennebec, a statement and inventory of the accounts of said partnership, as required by law.

On Exceptions from Nisi Prius, Appleton, J., presiding. Debt on a judgment recovered in 1843, damage $1424,00, cost $24,27. Plea, nil debet.

On Exceptions from Nisi Prius, Appleton, J., presiding. Debt upon a judgment recovered in March, 1831, for $516,76 debt, and $14,71 costs. Upon the writ in that action the property of the defendants was attached. The present action was brought February 4, 1851. The plaintiff read the record of the judgment, and introduced the execution issued thereupon, March 10, 1831, returned no part satisfied, and it was admitted that no alias execution had ever issued.

<p>On Exceptions from Nisi Prius, Tenney, J., presiding.</p> <p>Assumpsit, on account annexed for balance $212,00, due for 100 barrels of flour.</p> <p>The plaintiffs, merchants of New York, on December 3, 1844, parted with one hundred barrels of flour, value, with truckage, &c., $424. It was delivered on the same day to one Casey, a resident of New York, by whom it was shipped to the defendant in Eastport.</p> <p>Their sale book, (introduced at the trial, on notice to produce,) showed, that they charged the flour to the defendant, and that on December 5, they received one half the amount, $212,00. The evidence showed that that payment was made by hand of Casey.</p> <p>The plaintiffs introduced evidence tending to show, that Casey was the agent of the defendant in making the purchase.</p> <p>In order to show, that the purchase was made of the plaintiffs by Casey, on his own account, and that the sale to the defendant was made by Casey and not by the plaintiffs, the defendant offered in evidence an account current made up and signed by Casey, on Dec. 5, 1844, between himself and the defendant, in which he charged the defendant under date of December 4, with half amount of bill of flour, $212, W., D. & Co. The genuineness of Casey’s signature was proved.</p> <p>The plaintiffs objected to the reception of the paper. But it was admitted, and went to the jury, and to its admission the plaintiff excepted. The verdict was for the defendant.</p> <p>The paper was admissible. It was made up on the same day, (5th December,) on which he paid half the bill to the plaintiffs, charging that he had made the sale to the defendant on the 4th. .</p> <p>It was a written statement made at the time of the transaction by Casey, whom the plaintiffs have made a participator in the transaction.</p> <p>The stating this account and charging Sherlock one half the bill of flour was contemporaneous with the payment by Casey to Wilson, Douglass & Co., and tends to illustrate that fact, and was “ so connected with it as to be regarded as the mere result and consequence of the coexisting motives.”</p> <p>It was an act performed at the time of the transaction by Casey, through whom they claim to hold the defendant, and directly connected with the principal fact in the case, explaining the motives and intentions of the parties.</p> <p>It was surely admissible then as part of the res gestee.</p> <p>But the paper was of no [consequence in the cause, as the Court will perceive by examining it. It charges Sherlock with “one half bill of flour of W., D. & Co.,” which half? Had Casey paid one half of the bill and charged it to him, or had Sherlock furnished Casey with the money to pay one half and was the charge designed to cover the unpaid portion of the bill,?</p>

On Exceptions and on Report from Nisi Prius, Hathaway, J., presiding. Scire Facias. The plaintiffs reside in this State. They brought their action, (returnable to the late District Court,) against James Albee, Jr., as principal defendant, and against Henry F. Eaton and Joseph E. Eaton, as his trustees. Albee and the Eatons are inhabitants of the British Province of New Brunswick, resident in the town of St. Stephens, adjoining the boundary line of this State.

<p>In some classes of cases, a defendant in one suit may be sued in another suit as trustee of .the person who was plaintiff in the former suit.</p> <p>Such suit against the defendant as trustee operates as an attachment of the fund in his hands.</p> <p>After such attachment has expired, the trustee suit cannot delay or impair the right of the plaintiff in the original suit in obtaining judgment and execution against the defendant.</p> <p>Such an attachment expires, unless within thirty days from the judgment, a demand, on the execution be made upon the trustee.</p>

On Facts agreed and on documents and testimony referred to. Writ of Entry to recover possession of a piece of land on the river St. Croix, in Calais, where the tide flows and ebbs. The demanded premises are part of a strip of flats or shore, twenty-five rods wide, and lying between high water mark and low water mark. In 1792, John Bohannan purchased one hundred acres of land in the then plantation No. 5, now the city of Calais.

<p>It seems, that by the common law an officer has authority to make an arrest upon reasonable ground of suspicion, without warrant, and if his suspicion vanishes he may discharge the person arrested without bringing him before a magistrate. But he cannot lawfully detain him without warrant any longer than a reasonable time for bringing him before a magistrate.</p> <p>A by-law of a town is invalid, if it be repugnant to the general law of the State.</p> <p>The general law, Stat. of 1848, c. 71, § 2, provides, that if an officer “shall detain any offender, without warrant, longer than such time as was necessary to procure a legal warrant, such officer shall be liable to pay all such damages as the person detained shall suffer thereby.</p> <p>To that enactment, a town by-law, authorizing an officer to arrest and detain without warrant for the space of forty-eight hours, is repugnant.</p> <p>In a suit against an officer for arresting and detaining the plaintiff, such a by-law can furnish no defence.</p>

'On Report from Nisi PriusAppleton-,. J-., presiding. Trespass, for fifty barrels of spirituous liquor. The general issue, with brief statement, was pleaded. The evidence admitted tended to prove tbe following facta. One Barrett sued out his writ against Arthur Doon upon a note of $ 1200. Upon that writ, this plaintiif, Nichols, being sheriff of the county, attached the liquor, Nov. 27, J-8ol, and took it into his possession.

On Report from Nisi Prius, Appleton, J., presiding. Petition for Partition. The petitioner represents, that he is seized in fee simple of 3593 acres in township letter B, in the second range of townships west from the east line of the State, and in the county of Aroostook, holding the same in common and undivided with persons to him unknown, and prays that his portion of the township may be set off to him in severalty.

On Exceptions from Nisi Prius, Appleton, J., presiding. Replevin. The replevin bond was signed, “ Narraguagus Land Company, by W. F. their attorney.” He had no authority to execute the bond in the plaintiffs’ name, “except his general authority as an attorney at law, to* collect stumpage for the plaintiffs.” He was called as a witness for the plaintiffs, and was objected to because of his execution of the replevin bond in the aforesaid form. He was, however, admitted.

<p>Under U. S. c. 107, the executor or administrator of a deceased co-partner is hound to include in his inventory the co-partnership estate for distribution.</p> <p>The prior right of administering upon such estate belongs to the survivor, upon his giving a bond “ for the benefit of all persons interested in the estate.”</p> <p>Until the survivor have given such bond, he has no power to dispose of any part of the company estate.</p> <p>If he decline to give such bond, the executor or administrator of the deceased partner, on giving a prescribed bond, is to take the partnership estate into his own possession for administration.</p> <p>In such case, a sale of partnership goods hv the survivor is unauthorized and void, and notes given for the goods so sold are without consideration.</p> <p>Of such goods, the administrator is entitled to the immediate possession; and the purchaser, therefore, is not chargeable as trustee in any suit against the surviving partner.</p>

On Facts agree». Complaint for flowing the plaintiff’s land by means of s mill-dam. The complainant set forth his claim of an entire ownership in the land flowed. He in reality was the owner of an undivided half only ; and moved to amend his complaint so that it should describe his true ownership.

On Exceptions from Nisi Prius, Tenney, J., presiding. Covenant Broken. There was a negotiation for the letting of a farm by the plaintiff to the defendants. They selected two persons as arbitrators to decide upon the terms of the lease, and the arbitrators expressed their opinion on the subject.

On Report from Nisi Prius, Appleton, J., presiding. Trespass, for cutting timber upon the public lands in Plantation No. 9, commenced by virtue and under the provisions of c. 196, § 7, of laws of 1850. The defence was, that this section had been repealed by c, 284, of laws of 1852.

On Facts agreed. Assumpsit. This is an action on a note dated in 1837, executed at Madawaska, a portion of the territory then in dispute between the United States and Great Britain. The Province of New Brunswick then exercised jurisdiction at this place, on both sides of the river, and continued to do so, till the ratification of the Ashburton treaty. The note was signed in the presence of an attesting witness.

Exceptions from Nisi Prius, Appleton, J., presiding. Trespass, for cutting timber on lands in said plantation, reserved for public uses. The writ-was dated April 19, 1852, and alleged the trespass to have occurred in Dec. 1851, and in March and April, 1852. The general issue was pleaded.

<p>On Exceptions from Nisi Prius, Hathaway, J., presiding.</p> <p>Assault and Battery.</p> <p>Complaint was made before a magistrate and a warrant issued and an appeal taken from the judgment of the justice.</p> <p>In the copy of the warrant, were these words, “ Given under my hand and seal this fourth day,” &c.,*but there was no seal upon the warrant, nor any sign that the original had been under seal, except in the words quoted.</p> <p>When the case came, on for trial, the counsel for defendant moved to quash the proceedings, because by the copies produced, the warrant did not appear to have been under seal.</p> <p>This motion was denied.</p> <p>After trial and conviction of the defendant, a motion was made in arrest of judgment for the same cause, which the presiding Judge overruled.</p> <p>The defendant excepted to the rulings.</p> <p>1. At common law, a seal to a justice’s warrant cannot be dispensed with. American Common Law Reports, 8, 358; Tacket v. The State, 3 Yerger’s TermR. 392; State v. Caswell, Charlt. 280; State v. Curtis, 1 Hayward, 471; Silver v. Ward, N. C. Law. R. 548; Dane’s Abr. vol. 6, c. 193, art. 30; lb. vol. 7, c. 217, art. 3, $ 7; Davis’ Justice, p. 25.</p> <p>2. The common law is paramount until it is modified, altered or repealed by statute. Our statute is merely in affirmance of the common law,</p> <p>3. The necessity of a seal to a warrant has been uniformly held by the highest authorities in England. 4 Black. Com. 290; 1 Hale, 579; 2 Hale, 111; The Dean and Chapter of Windsor, 2 Saund. 305, note 13; 2 Inst. 52, 991, 992. The case of Padfield v. Caball al, Willes, 411, on close examination, is not found to be in conflict with these authorities.</p> <p>4. In the Commonwealth of' Massachusetts, they had as early as 1784, a statute regarding the criminal jurisdiction of justices of the peace, regulating warrants in the language of our own statute. And from that time to the present, the usage has been there to issue warrants under seal, and the universal professional opinion has been that a seal was necessary to their validity. This continuous exposition of the meaning of a statute similar, to our own has never been deliberately impugned, invalidated or doubted.by the Courts of that State or of this. ¥/hatever may appear to the contrary in State v. McNally, 34 Maine, 222, was a mere obiter dictum, and of no binding authority.</p> <p>In State v. McNally, 34 Maine, 222, it has been decided that a warrant issued by a magistrate, need not be under seal unless required by statute.</p> <p>The case cited from Willes is approved; which says that a “ warrant ex vi termini, does not imply an instrument under seal, it is no more than mere authority.”</p> <p>The statutes giving jurisdiction to justices of the peace in cases of assault and battery, are R. S., c. 170, <§> 3, which simply requires the magistrate “to issue his warrant,” and c. 171, <§> 2, which says, “the court or justice shall issue a warrant.”</p> <p>Neither of these require the warrant to be under the seal of the justice. By another statute, all processes from the Supreme or District Court, are to be under the seal of these Courts respectively.</p> <p>The same decision has been made' elsewhere. “In South Carolina there is no statute requiring a seal to be affixed to a warrant issued by a magistrate, and it is therefore unnecessary.” State v. Vaughan, Harper, 313, cited in 3 U. S. Dig. 393, title, “seal,” clause 24.</p> <p>The decision in State v. Coyle, 33 Maine, 427, is not at variance with this doctrine. The question whether a seal was essential or not, was not presented, nor considered. The opinion was oral and merely went to the fact whether or not there was a seal.</p>

<p>On Exceptions from Nisi Prius, Tenney, J., presiding.</p> <p>[This- case, though recently handed to the Reporter, was argued to the Court in 1850, before the passage of the Act, which disqualified a Judge from taking any part in an ultimate decision, by which any of his previous rulings or decisions in matter of law might be overruled or reversed.]</p> <p>Trover for a quantify of cordwood.</p> <p>The plaintiff, an officer, attached, as the property of John Marks, “sixty cords of soft cordwood’, more or less, now laying near the eastern end of the bridge leading over McHard’sstream,” as appears by his return on the writ and by the record of the clerk of the town in which the attachment was made.</p> <p>It was proved that the wood had been cut, hauled and piled up by John Marks before the attachment, whether done for himself or for another person, was a question in controversy; that it consisted of pine and spruce, and white birch and white maple, intermingled together,. in proportion of about two thirds of spruce and pine, and one third of white birch and white maple; — that it was all cut from the same land and at the same time, and hauled intermingled without separation of one kind from the other, and that it continued so intermingled till it was taken away and sold by the defendant, after the attachment. For that taking and selling, this suit is brought</p> <p>It was contended by the defendant, that the attachment would not cover any of the birch and maple.</p> <p>The Judge instructed the jury that the plaintiff could not ¡recover for wood which was not attached and returned upon ¡the writ; that if the spruce and pine were intermingled with the white birch and the white maple, when attached, and when the same was taken by the defendant, and the attachment was on the whole wood, without reference to the different species in fact, the jury would be authorized to consider, that the attachment was not limited to the pine and spruce.</p> <p>To that instruction the defendant excepted.</p> <p>cited Leadbetter v. Blethen, 18 Maine, 327; Hayes v. Small, 22 Maine, 16; Hathaway v. Larrabee, 27 Maine, 449; Robbins v. Otis, 1 Pick. 368 ; 8 Johns. 253; 3 Term R. 67; 4 Term R. 314.</p>

On Report from. Nisi Prius, Hathaway, J., presiding. Trespass for cutting and taking away standing timber. A plantation was organized for election purposes, comprising township No. 10 and a part of township No. 9. In the language of the writ, the assessors, [giving their individual names,] brought this action, “ in the name of the plantation,” for a trespass upon a public and reserved lot, situated in the township No. 10.

On Exceptions from Nisi Prius, Appleton, J., presiding. Assumpsit. The action is brought to recover for supplies furnished to one Shubael Brown, whose legal settlement was in Bucksport, but who had fallen into distress and needed immediate relief in Orland. The material facts are all stated in the opinion of the Court.

On Report from Nisi Prius, Appleton, J., presiding. Assumpsit. The inhabitants of Dedham, formerly township No. 8, had petitioned for a location of public lots. Several individuals had petitioned for partition of lands. On some other petitions, for partition, judgments had been entered, and upon those judgments the original petitioners had applied for-reviews. Upon two other petitions, judgments had been entered, and the respondents therein had petitioned for reviews.

<p>On Facts agreed.</p> <p>Case.</p> <p>J. & S. Snowman built a brig by contract. The plaintiff, a ship carpenter, labored for them upon the brig. For that labor the law gave to him a lien.</p> <p>One Mudgett was the master builder, who also had a similar lien of $150.</p> <p>At the request of the Snowmans, the plaintiff paid Mudgett that sum, and took from Snowmans their negotiable note therefor.</p> <p>To avail himself of his lien, the plaintiff brought a suit against the Snowmans and seasonably attached the brig. Their writ contained a count upon the note and also one upon an account for the plaintiffs personal labor. The defendant, Tincker, was then sheriff, and the attachment was made by his deputy, Ward well, who immediately permitted the vessel to go into the hands of one Woodman upon his accountable receipt for a re-delivery. The brig soon afterwards sailed upon a voyage, and has never siuce been within the jurisdiction of the State. Prior to the recovery of the plaintiff’s judgment against the Snowmans, Wardwell admitted to the plaintiff’s attorney that the vessel was beyond the limits of the State, and that he should not be able to deliver her upon the execution.</p> <p>Before that judgment, (in which the plaintiff included the amount due upon Snowman’s note as well as upon the account for his own personal services,) one Redman had been appointed sheriff, in room of Tincker, this defendant.</p> <p>Within thirty days from the judgment, execution was issued, but it does not appear to have been placed in the hands of any officer. Before the thirty days expired, Redman, though having neither the execution or the receipt, made a demand upon Woodman for the vessel. Upon this demand, which was made by Redman at the request of Wardwell, Woodman said “he would take no advantage of Redman’s not having the execution in his hands.”</p> <p>This action is to recover for the fault of Wardwell in not keeping the brig to be sold on the execution.</p> <p>The plaintiff had a valid lien under the statute for labor upon the brig. That labor was rendered partly by himself and partly by Mudgett. The payment of Mudgett’s claim immédiately transferred his lien rights to the plaintiff.</p> <p>The plaintiff was subrogated to all the rights of Mudgett. You may say that the plaintiff labored in the person of Mudgett; or at least that Mudgett was laboring for him. It is not apparent why the labor of another, procured in that way, is not entitled to as much favor as one’s own labor.</p> <p>But if it should be the opinion of the Court that our lien claim was defeated by being united with a non-lien claim in the same judgment, we urge that, irrespective of our lien claim, we had a demand, sued in the usual form, which was valuable to us, and which we had a right to vindicate by the attachment and sale of the vessel. The defendant or his deputy was bound to keep her for that purpose. Not having done so, the defendant is clearly liable, unless there be some objection to the sufficiency of the demand made on the receiptor.</p> <p>The attaching deputy and his principal, this defendant, were both out of office, when the judgment was recovered and the execution obtained. Ordinarily it would have been necessary to demand the brig, within thirty days. Was it necessary to do.so here ? After thirty days the officer has a right to restore to the debtor the property attached, unless notified to retain it for sale on execution. A demand operates merely as a notification not to. return it to the debtor. In this case there was no need to demand it, inasmuch as the property was not in the defendant’s hands, nor in the State. A demand therefore could have had no effect, either upon the defendant or any body else. The default did not consist-of a neglect to give it up when demanded on execution, birt in allowing it to go back to the debtors when attached.</p> <p>This point is clear upon principle, and is decided in Phillips & al. v. Bridge, 11 Mass. 242.</p> <p>In Higgins v. Kendrick, 14 Maine, 87, the Court say, “ if not called upon for the property within thirty days after judgment, unless the officer had put it out of his power to produce it, he might have a claim to be discharged,” and they cite the case of 11 Mass, approvingly. See also White v. Bagley, 7 Pick. 288.</p> <p>The officer had placed it out of his power to produce the property. In this case, however, there was a demand, or at any rate a valid waiver of a demand. 'The defendant’s deputy had notice of the execution within the 30 days, and himself made answer to the demand, by requesting the new sheriff to make the demand upon the receipter. Any further demand would have been useless. His answers and directions are the best evidence that a demand was made. He knew of the execution; knew a demand would be useless-; or else considered that a demand was already made on him, and requests that we would make a demand on the receipter, instead of making it on him.</p>

On Exceptions from Nisi Prius, Hathaway, J., presiding. This action was entered at the Oct. term, 1852. At that term, the defendant’s attorney appeared specially. At this (January) term, he moved, that the suit be dismissed for the reason, that the writ was dated on the sixth day of October, 1852, and made returnable “ on the fourth Tuesday of October next.

On Facts agreed. Assumpsit to recover T4/g- of the expense, incurred by the plaintiffs in supporting one Robinson and his wife as paupers. By an Act of 1848, the town of Mount Desert ivas divided, and one part of it was incorporated into the town of Tremont.

On Facts agreed. Case. A small brook flowed through a culvert made by the defendants under one of their public highways. The culvert was of ample size to discharge all the water. One Webber erected a stone wall, upon the line of the highway, for one end of his cellar.

On Facts agreed. Assumpsit. The defendant was arrested on an .execution in favor of the plaintiffs, and gave a six months relief bond. Before the expiration of the six months, he surrendered himself into the custody of the jailer, and went into close confinement on Sept. 28, 1850.

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Assumpsit, for money paid for defendant. It appeared that plaintiff was surety for defendant, to one Johnson, in two promissory notes, which he paid. The defence was, that he paid them for Isaac Lunt, and not for defendant.

Exceptions from Nisi Prius, Rice, J., presiding. Trespass quare clausum. The question was one of costs. The defendants, while the action was in Court, tendered the plaintiff a sum of money for his damages and costs, and brought the same into Court and deposited it with the clerk.

On Report from Nisi Prius, Rice, J., presiding. Debt, on a poor debtor’s bond. The execution of the bond was proved by a witness, who testified on his cross-examination, that subsequent to the date .of the bond he met the parties, and plaintiff told him the bond was settled or arranged, and that there would be no disclosure upon it. He was at the place to perform some act as an officer, to serve a citation or something in relation to the matter.

Exceptions from Nisi Prius, Rice J., presiding. Assumpsit, for money had and received. Plaintiff, in 1846, sold to the defendant a piece of land and gave him a warranty deed. The consideration named in the deed was paid. At the time of the sale, a petition was pending before the county commissioners for an alteration or discontinuance of a road which passed by the land.

On Facts agreed. Assumpsit, on a promissory note for one hundred dollars. At the time the note was given, defendant owed the “ Georges Canal Company” $100, for an assessment on his shares, and the company owed the plaintiff $100. The treasurer agreed with the parties, that the defendant’s debt to the company might be discharged by giving the note in suit to the plaintiff, and thereby pay to him what the company owed him.

On Exceptions from Nisi Prius, Rice, J., presiding. Bill in Equity. The defendant moved that the bill be dismissed for want of a sufficient service. The motion was resisted by the plaintiff, but was sustained by the Judge who ordered that the bill be dismissed. To that order the plaintiff excepted.

<p>It is not a joint relief bond, given by all the execution-debtors, as principals, but it is a separate bond given by each, which, under the statute, entitles to a release for arrest.</p> <p>Such joint bond, however, though not a statute bond, is valid at the common law.</p> <p>Each principal obligor, in a joint bond, is a surety for his co-obligor.</p>

On Report from Nisi Prius, Appleton, J., presiding. Assumpsit. The plaintiff had 172 mill-logs in the Penobscot boom. They were entered on the books of the boom corporation as the property of the plaintiff, and the boomage was charged to him. They were subject to the lien for boomage, 026,13.

On Habeas Corpus. The inhabitants of the town of Dexter instituted an action of debt, against Hanson, before a justice of the peace, to recover the penalty for having sold spirituous liquor in violation of the statute. In that suit they recovered a judgment for $10, forfeiture, and $8,62, costs.

<p>A domicile, being once fixed, is deemed to continue until proved to have been actually changed.</p> <p>The residence of the wife, (her husband being more than twenty-one years of age,) is prima facie evidence of bis domicile, and in the absence of controlling proof is conclusive.</p> <p>Absences for longer or shorter periods, for temporary purposes, do not change the domicile.</p> <p>Thus an enlistment and service for five years in the army, do not necessarily show a change of domicile.</p>

On Report from Nisi Prius, Hathaway, J., presiding. Debt on Recognizance. The plaintiff, in a process of forcible entry and detainer, recovered a judgment in the Police Court of Bangor, against Joseph C. Mason, one of the defendants, for possession of the land and for costs $3,38.

<p>On Report from Nisi Prius, Appleton, J., presiding.</p> <p>Dower.</p> <p>In 1832, Richard Treat took a conveyance of lot No. 10, Summer street, Bangor.</p> <p>In April, 1832, he conveyed to Baldwin, who owned the adjoining lot, “ four feet off south side of No. 10.”</p> <p>A divisional fence was put upon the line, by which the four feet were fenced off to Baldwin, who has ever since occupied the same as a part of his enclosure.</p> <p>In Sept. 1832, Treat conveyed to Taylor the lot No. 10, “ excepting four feet off south side.”</p> <p>In 1836, the title of Taylor, through mesne conveyances, became the property of John Barker, jr., the demandant’s husband, who resided thereon from that time till his death in 1851.</p> <p>In that year, after his death, a demand of dower was made by the demandant upon S. H. Blake. The demand was in writing, and described the land, in which dower was demanded, to be “ all that part of lot No. 10, on Summer street, except a strip of four feet in width off the southerly side thereof.”</p> <p>The tenant, as a defence to the suit, set up a title in himself under two deeds from the collector of taxes, upon sales made by him for non-payment of the taxes of 1840 and 1841. The tax of both years was on an inventory as follows : —</p> <p>“John Barker, jr.? house and lot No. 10, Summer street.”</p> <p>The taxes were upon Barker as a resident. Assessment books showed, that the same description of the property had been adopted by the assessors for all the jmars since 1836.</p> <p>The said sales by the collector were made in 1842, to Reuben Ordway, of the house and lot No. 10, Summer street.</p> <p>Ordway, in 1843, deeded to S. H. Blake lot No. 10, Summer street, excepting four feet off south side.</p> <p>In 1852, after the demand of dower had been made on S. H. Blake, and before the commencement of this suit, he conveyed to the tenant, lot No. 10, Summer street, excepting four feet off the south side.</p> <p>The case was submitted to the Court for a decision according to the legal rights of the parties.</p> <p>The assessments against Barker were for the whole of lot No. 10. Upon those assessments, the land was sold, and it is under those sales, that the tenant claims title. But Barker never owned or occupied any more than a part of the lot. Four feet of it had long been owned and occupied by Baldwin. It is only of the residue, that dower was demanded or is now sought.</p> <p>"No argument can be necessary to show, that a sale is void',, when made upon an assessment against an inhabitant for land which he never owned or occupied or claimed.</p> <p>The land owned and occupied by Barker had acquired the name of lot No. 10. This had long been its designation. By this description it was taxed from the year 1836. By this name it was well and commonly known and’ recognized’. Barker, by paying so many years’ assessments, made upon it fey that name, recognized the name.</p> <p>And who shall object to the name, given by a man to his own land; whether he chooses to call it Elmwood or Ash-land or Monticello ; Black lot or White lot; lot A. or lot W., lot No. 10 or No. 50? And it can make no difference by what means his lot had become so small or so large.</p> <p>The land was clearly described by a generally understood, and well recognized designation. It was enclosed by itself and no misapprehension could arise.</p> <p>No plan of lots was shown, or even referred to in any of the title deeds, used at the trial. If some former proprietor had given to the land, including the four feet strip, the name of No. 10 ; surely a subsequent owner might give the same name or any other name to a lot reduced by four feet. He might have cut his land into smaller divisions, giving to each of them some numerical designation.</p> <p>I submit then, that the description in the list of assessments was well enough.</p>

<p>On Report from Nisi Prius, Appleton, J., presiding.</p> <p>Trover, for goods removed from a store occupied by the plaintiff.</p> <p>Allen had goods, and traded in a store which he had hired of Bicknell. On August 13, 1849, the parties agreed in writing that Allen should purchase the store and its lot, by giving Bicknell fifty dollars more than the same should be appraised by referees, agreed upon. In the same agreement it was stipulated that Bicknell should have the store for fifty dollars, and should remove it from the land so soon as Allen should have erected a new one. . Several other matters were submitted to the referees, who, on August 15, 1849, awarded, among other things, that the value of the lot with the store was $425. The same was accordingly conveyed to Allen, who on a settlement of all matters according to the award, gave his note for $402, the balance due to Bicknell, and mortgaged back the land to secure the note. In that settlement the fifty dollars were allowed to Allen, ns the price of the store, which Bicknell was afterwards to remove.</p> <p>Allen’s new store was completed and occupied by him a few days prior to April 13, 1850. But he had not taken all his goods from the old store. Bicknell was then desirous to take the old store away, and notified Allen to remove thp goods from it. This not having been done, Bicknell, on said April 13, 1850, removed the goods a short distance to a building of his own, notifying Allen that he could recéive them there at any time. No part of the mortgage debt of $402 had then become payable. It is for this removal of the goods, that this action of trover was brought.,</p> <p>.Some days after that removal, Bicknell undertook to deliver the goods to the plaintiff’s attorney; but after a part of them had been arranged for delivery, the plaintiff replevied that part, and no delivery was effected.</p> <p>The case was submitted to the Court for a nonsuit or default according to the rights of the parties.</p>

On Facts Agreed. Trespass, for mesne profits of a store. The defendant conveyed to the plaintiff the store in 1846, by an absolute deed, but continued to occupy it till July 10, 1850. On April 12, 1849, the plaintiff in writing notified the defendant to quit.

<p>On Report from Nisi Prius, Appleton, J., presiding.</p> <p>Writ of Entry.</p> <p>The controversy involved the title to seven acres of land described in the pleadings, being a part of lot No. 20.</p> <p>In 1805, the land was conveyed to Hezekiah Wright, who, as was proved by a witness on the stand, was married, in 1810, to Charlotte Sewall, in Monmouth, in the county of Kennebec, by Rev. Dr. Gillett, who resided in Hallowed, and was then, and for many previous years had been a minister of the gospel, ordained and settled as pastor of the South Parish Church. And after that marriage the said Hezekiah and Charlotte lived together as husband and wife until the death of the husband, who died in 1815, leaving Hezekiah Hartley Wright his only son and sole heir. Hezekiah Hartley Wright died in 1840, leaving his mother, Charlotte Wright, his sole heir, who on Feb. 22, 1850', conveyed to the demandant all her right in lot No. 20.</p> <p>The only compensation paid for that deed was the demand-ant’s own bond, stipulating to pay her three hundred dollars, if her title should prove to be a valid one, in such suits as he would immediately bring to recover possession of the land.</p> <p>The tenant was in possession, claiming through several successive conveyances, under a deed, made by a collector for the payment of taxes assessed in 1837. What warranty, if any, was contained in the collector’s deed, the case does not show. To establish the tax title, it was necessary for the tenant to prove that the collector had advertised, in some newspaper printed in the county, that the land was assessed and would be sold at auction for the taxes.</p> <p>Upon this point, a witness testified that he had made search for a long time for a copy of a newspaper printed in Bangor, called the Bangor Post, but without success.</p> <p>The tenant then offered, as a witness, the collector, by whom the tax sale was made, to prove that he duly published an the Bangor Post the auction sale for the payment of taxes.</p> <p>The witness was objected to on the ground of interest, and was excluded.</p> <p>It appeared that the demandant owned the adjoining lot, No. 21, and had claimed that it embraced a part of the demanded premises, and had erected a small house upon it; that, for that occupation, Thomas Mitchell, one of the grantees under the tax sale, brought an action of trespass against the demandant; that said action was referred to a referee, whose award, reudered in 1849, was in favor of Mitchell, and required the demandant to remove the house; — that the demandant, both before and after the reference, said he had a deed of the whole of Jot No. 20; and, that if Mitchell would not let him alone as to the piece in dispute, he would not allow Mitchell to have any of the land; and that the demandant claimed to own the strip which was disputed in that action, as a part of lot No. 21.</p> <p>Upon such of the foregoing evidence as was lawfully admissible, tire Court, having power to draw inferences of fact, are to order a nonsuit or default as the law may require.</p> <p>The marriage between Hezekiah Wright and Charlotte Sewall, in 181(1, was valid. The statute of 1786, § 2, then in force, provided, that “ when any religious society shall be destitute of a.settled and ordaiued minister of the gospel, in case there shall not be such a minister within the town, district or plantation, in which such religious society is,'it shall be lawful for any such minister within the same county, to join any person of such town, district or plantation in marriage,” &c.</p> <p>Now the presumption of law, in the absence of proof, is, that the doings of the minister were under the contingency provided for, and were therefore legal.</p> <p>“Proof, by witnesses who saw the marriage, is prima fade sufficient, and whoever would impeach it, must show wherein it is irregular.</p> <p>“ If it appears there has been a marriage in fact, by a witness present, that saw the paities stand up and go through the usual ceremonies of marriage, directed by one who usually married, or usually appeared to marry persons, the Court will presume it was a legal marriage till the contrary is proved.” Damon's case, 6 Maine, 148, aud cases cited.</p> <p>In this case the contrary has not been proved, but the legal inference is, that one of the partiés lived in Monmouth, that in that place there was a religious society destitute of a minister, and therefore .“ it was lawful for any such minister within the same county to join any person of such town, district or plantation in marriage."</p> <p>In the case of Ligonia v. Buxton, 2 Maine, 102, the contrary was proved ; “ he resided in Palermo and she in Mont-ville,” the marriage was in Knox, the minister and parties residing in different counties, all of which facts that case discloses, and the objection was, “ because solemnized in that town in which neither of the parties then resided.”</p> <p>The testimony of the tax collector was properly excluded, for he was interested as warrantor in the tax deed.</p> <p>All pretext of title under that sale therefore vanishes away.</p> <p>But the tenant undertakes to avoid the plaintiff’s title on the ground of champerty.</p> <p>By R. S. of 1841, c. 91, § I, it is enacted, that — “When any person shall make a deed of any lands or other real estate, owned by him in severalty or in common with others, acknowledged and recorded in the manner prescribed in this chapter; whether at the time of the execution and delivery of the deed he is seized, or not seized, of such lands, or estate, but to or for which he has a right of entry, such lands or «state, or all the title or interest, which the grantor has in or to the same, shall pass by such deed of conveyance, as effectually as if the grantor was, at the time of the conveyance, seized of the same.”</p> <p>In this section new provisions are introduced, abrogating all common law or previous statute decisions, and placing every man, as he ought to be placed, upon the strength of his own title.</p> <p>All then, that can be said, is, what Chancellor Kent said, as to the abrogation of the rule in Shelley’s case : — “The juridical scholar, on whom his great master, Coke, has bestowed some portion of the gladsome light of jurisprudence, will scarcely be able to withhold an involuntary sigh, as he casts a retrospective glance over the piles of learning, devoted to destruction by an edict, as sweeping and unrelenting as the torch of Omar.”</p> <p>The Act of 1786 restricts the authority of a minister from solemnizing marriages, except in the town where he resides.</p> <p>The act of Or. Gillet in marrying Hezekiah Wright and Charlotte Sewall, in Monmouth;, was unlawful and of no validity. Ligonia v. Buxton, 2 Greenl. 102.</p> <p>The 3d section of that Act, on which the tenant relies, provides that “ every stated and ordained minister, in the town where he resides, shall be authorized to marry between persons, when one or both belong to or are residents in the town where such .minister resides.</p> <p>But the demandant’s counsel urges that the law raises a presumption, from the very act of the minister, that he had authority to do it, and that the contingency named in the second section existed. But the facts necessary to impart to him the authority are matters not of presumption, but of proof.</p> <p>In taking the conveyance from Charlotte Wright to the demandant, there was champerty, by which the transaction became a nullity.</p> <p>The land had long been occupied adversely to her, and under a claim of title had passed through several successive owners for a full consideration, actually paid. This was well known both to the demandant and to his grantor. By the terms of the conveyance, the demandant was to pay, only on condition that he should hold the land. Such a conveyance is unsustainable. Bac. Abridg. E’, Title Maintenance ; Title Grant, letter D; Wolcott v. Knight, 6 Mass. 118; Everendcn v. Beaumont, 7 Mass. 76; Swell v. Poor, 31 Mass! 549.; Brinley v. Whiting, 5 Pick. 348; Preston v. Hunt, 7 Weud. 53; Wickham v. Conklin, 8 Johns. 170; Arden v. Patterson, 5 Johns. Oh. Cases, 44; 4 Black. Comm. 134; Jackson v. Ketchnm,, 8 Johns. 374; 4 Kent, 446, 449; Etheridge v. Cromwell, 8 Weud. 629; Jackson v. Demont, 9 Wend. 55; Wandych v. Van Burén, 1 Wend. 344; Tomb v. Sherwood, 13 Wend. 289; Williams v. Jackson, ,5 Wend. 503; 20 Wjend. 386 ; 7 Wend. 251; 13 Johns. Cases, 289 ; Stearns on Real Actions, 29.</p> <p>Such an act of maintenance is a criminal offence, and from such an act of crime, no rights could be acquired. It is contra bonos mnres. The provision of R. S., c. 91, <§> 1, was intended only for cases where there is an adverse possession of wild lands unknown to the parties to tire conveyance. It never was intended that, when the parties to the conveyance knew all the facts, how the land is occupied and the nature of the adverse claim, that such mere right of action should be made a subject of bailer, speculation and strife. The intention in this as in other cases, stamps the transaction as innocent or guilty. And this intention is an essential element in the offenee,of maintenance.</p> <p>The difference therefore between this offence and the inconvenience that the statute proposes to remedy, is too obvious to be mistaken, and such are the views of Smith in his Leading Cases, vol. 2, p. 514, and to support his position he cites Stephen v. Bagwell, 15 Ves. 139.</p> <p>There is another difficulty ill regarding the statute as abolishing the offence of maintenance. All the authorities that treat upon the subject, and all the decisions of the courts, regavd maintenance as an offence, not only malum prohibitum, but malum in se. Stearns on Real Actions, 29 ; 4 Bl. Com. 132 ; 2 Justin. 208, 212 ; 1 Hawk. 255 ; 22 Weud. 403.</p> <p>In Phelps v. Decker, 10 IVlass. 274, the Court say such deeds are void ab initio, and may he avoided by evidence under the plea of non est factum. ' The same is decided in Dale v. Rosevelt, 9 Cow. 307, and in Everenden v. Beaumont, 7 Mass. 77 — 8; 15 Yes. 140. The same principle is affirmed by the S. C. of U. S. repeatedly. Craig v. Missouri, 4 Pet. 431; Bartel v. Coleman, 4 Pet. 184; Hammy v. Eve, 3 Cranch, 242, (1 Cond. 512) ; Armstrong v. Tolu, 11 Wheat. 258, (6 Cond. 298); S. C. 4 Wash. 297 ; 2 Phil. Ev. 367.</p> <p>As between the parties, or either party to it, such a deed will not operate even as a basis for an adverse possession. 9 Wend. 511. Hence parol evidence is always admissible to prove such facts, and when proved will have the effect of vacating the deed ab initio. 4 Phillip’s on Ev., Hill &. Cowen’s notes, 612, note 304 to p. 367.</p> <p>Charlotte Sewall, at the time of giving her deed, was dis-seized. Until revested with a seizin she could not convey. At the common law her deed could therefore pass no title to the demandant. This rule of law is wholly a different oue, and based on reasons entirely different, from the rule that a champertor’s deed conveys nothing. 2 Smith’s Lead. Cases, 548.</p> <p>The deed from Charlotte Sewall to the demandant contained no covenant of any description. It was simply a release. Bht neither of them even have possession. Such a release, in such a case, conveys nothing.</p> <p>Again, it was without any consideration, the bond not being-payable unless the obligor should hold the land. Where there is no consideration, the conveyance merely operates as a trust for the use of the grantor. Co. Litt. 23 a; Welch v. Foster, 12 Mass. 93.</p> <p>The R. S., c. 91, in its utmost extent, authorizes a conveyance where there is a right of entry. But Charlotte Sewall had no right of entry. It was more than thirty-five years, after the descent had been cast upon Hezekiah H. Wright. In all that period there was no entry by him or any one claiming under him. The right of entry, therefore, had been lost by lapse of time, and the statute gives no relief.</p>

On Report from Nisi Prius, Tenney, J., presiding. Covenant Broken. In 1833, the defendant mortgaged a lot of land to Thornton M’Gaw, to secure the payment of $2400, by installments, the last pay-day being ,in 1836. Notwithstanding the mortgage, the defendant, in 1835, conveyed the same land to the plaintiff, witli covenant that it was free from all incumbrances, and that he would warrant and defend the same against the lawful claims and demands of all persons.

On Facts Agreed. Assumpsit. Lock labored for Johnson at $12,50, per month. On settlement, May 3, 1852, the balance due to Lock for his services was $12,17. On June 5, 1852, Johnson was summoned as trustee in a suit against Lock, which was subsequently defaulted. He disclosed his indebtedness of $12,17, without showing that it was for labor done, and was adjudged trustee, and subsequently paid $5, upon the judgment. This suit is brought by the laborer to recover the $12,17.

<p>If, in. a Bill of exceptions, presented at Nisi Prius, for allowance, the Judge make wrongful alterations to the injury of the- excepting party, a correction-, cannot be had by motion to the Court. It can be had by writ of mandamus only.</p> <p>In the caption of a deposition, the magistrate’s certificate, that the adverse-party has been notified, is conclusive evidence that such notice had been given, and given in the season and mode prescribed by the statute} and no-affidavit or testimony is admissible to controvert it.</p> <p>In a civil suit, on an issue received and discussed by the jury on Saturday, their verdict may be affirmed and recorded on the next Court day, though it was finally agreed upon and sealed up on the morning of Sunday.</p> <p>A jury, after sealing up their verdict and separating, cannot be sent bach toreeonsider it, except by consent of parties.</p> <p>By pleading the general issue to the declaration,, the defendant waives all benefit from a demurrer previously filed.</p> <p>In a suit for slander, a count setting forth that the defendant had charged the plaintiff with the commission of a crime, by its general designation, is sustainable, though specially demurred to.</p> <p>Under such a general count, the Court may; on motion, order a specification of the words, which the plaintiff proposes to prove.</p> <p>From words, in themselves actionable, the law implies malice, and that some damage arises therefrom.</p> <p>In addition to this implication of malice, a plaintiff may prove express malice? whereby to increase the amount to be recovered as damage.</p> <p>For this purpose, he may prove that the defendant after action brought, repeated the slander. In such case, however, the repetition of the slander is not to he viewed as a substantive ground of recovery. It can go only to illustrate the motive of the former speaking, for which the action was-brought.</p> <p>In a subsequent suit for such repetition of the slander, it is no defence that the repetition was proved in the former suit, if it was so done for the sole purpose of showing malice in the original speaking.</p> <p>To assert that A. B. “ committed the crime, or he would not have done that other act,” is a charge that A. B. committed the crime.</p> <p>A charge that a married female is “ a bad woman, and has dealings with other men besides her husband, and is not very particular with whom,” —does not amount to the charge that she “ is a whore.”</p> <p>In slander, brought by a married female, one count was for charging upon her the crime of adultery, another for charging that she was a. whore;— Held, that proof of the adultery would defeat a recovery upon the first count, and. would mitigate, but not defeat, a recovery of damage upon the other.</p> <p>üfl an actiou-of slander, it is indispensable tbat tire Judge present to the jury the rule of law hy which then- assessment of damage should be made.</p> <p>2n such an action, it is proper that the jury, iu assessing the damage, should regard the probable futiere as well as the actual past.</p>

On Facts agreed. Debt on a poor debtor’s relief bond. The plaintiff recovered a judgment against the principal defendant. Upon the execution issued on that judgment, the defendant was arrested, and gave the poor debtor’s relief bond. One of its alternative conditions being, that within six months, he would deliver himself into the custody of the keeper of the jail, &c. This is an action of debt upon the judgment, brought after the giving of the bond and within six months.

<p>On Exceptions from Nisi Prius, Appleton, J.</p> <p>Bastardy Process.</p> <p>The respondent was examined before the Police Court of Bangor, and was ordered by that Court to give bond for his appearance at this Court at its term to be held Nov. 1852, “for the transaction of criminal business.”</p> <p>The complaint was entered at that term. The respondent moved that it be dismissed for want of jurisdiction, alleging that it pertained, not to the criminal, but to the civil department of the law. The motion was overruled, and the respondent excepted, the verdict being against him.</p>

On Report from Nisi Prius, Appleton, J., presiding. Writ oe Entry. Jacob G. Remick formerly owned the land. On Feb’y 11, 1836, he conveyed it to the demandant by a deed, which, though not acknowledged, was spread upon the record Feb’y 13, 1836.

On Exceptions from Nisi Prius, Hathaway, J., presiding. Debt on a poor debtor’s relief bond. Defence, that he had performed the condition by disclosing his property affairs and taking the oath, as therein provided for, before two justices of the quorum. The justices, in their certificate of'discharge, incorporated the debtor’s disclosure, from which it appears, that when making it, he laid upon the table and left three dollars for the justices’ fees. . ■ .

<p>On Report from Nisi Prius, Appleton, J. presiding.</p> <p>Debt on judgment, recovered in 1847, against J. Wadieigh, I. Wadleigh and James Purington, jr., for $541,77. Jewett & Crosby were the plaintiff’s attorneys of record in •obtaining the judgment. The death of Purington having been suggested, the writ was amended by striking out his name.</p> <p>The defendants put into the case, the execution issued upon that judgment. Upon the back of it was the following •indorsement; —</p> <p>“ In Consideration of four hundred dollars, we hereby assign and transfer the within execution to E. D. Hoskins, with all the rights and powers belonging to the same.</p> <p>"Jewett and Crosby, Att’ys for Wilson.</p> <p>"December 8, 1847.”</p> <p>The defendant also introduced a discharge of the execution by Hoskins, dated April 1, 1850.</p> <p>The defendants also put in the writ in the case, Jewett & al. v. Wadleigh Sf aln reported, 32 Maine, 110. By agreement, all the papers referred to in that case are to be considered as in this case.</p> <p>The defendants called a Mr. Crosby as witness, who testified that after Ira Wadleigh had paid t® Jewett, one of the plaintiff’s attorneys, the $400, Jewett and Wadleigh had a conversation about Purington’s liability to pay a portion of the demand, and the assignment was made for the purpose of enabling Wadleigh to collect of Purington. Wadleigh preferred that mode in preference to having it discharged, and Jewett wrote something on the execution.</p> <p>The case was submitted to the Court for a decision as the •legal rights of the parties may require.</p> <p>The assignment of the execution is void, Jewett & Crosby, the attorneys, having no power to make it.</p> <p>Parol evidence is not admissible to show, that this assignment was intended to operate as a discharge, and not as an assignment. 7 Maine, 435; 14 Maine, 335; Osgood v. Davis, 18 Maine, 146; Jewett v. Wadleigh, 32 Maine, 112.</p> <p>The memorandum given by the defendants to Jewett & Crosby, shows that the execution was not discharged; nor intended to be, except on the performance of certain conditions on the part of the defendants, which have not been performed. Jewett v. Wadleigh, cited above.</p> <p>On Dec. 8, 1847, in consideration of $400, paid and secured by defendants, the judgment was either discharged or assigned to E. D. Hoskins.</p> <p>If discharged, then the plaintiff has no cause of action. —</p> <p>For by statute c. 213, (Approved June 3, 1851,) § 1, it is enacted, that “ no action shall be maintained in any Court of this State, on any demand or claim, which has been settled, canceled or discharged by the receipt of any sum of money less than the legal amount due thereon, or for any good or valuable consideration, however small, by the owner thereof, or by his agent or attorney to whom the same has been entrusted for. collection or settlement, whether such agent or attorney be generally or specially authorized.”</p> <p>The present action was commenced Sept. 1, 1851, after the passage of the Act.</p> <p>Mr. Crosby’s testimpny shows, that the assignment was made to enable Wadleigh to collect of Purington, and that Wadleigh preferred that mode, rather than a discharge, and that thereupon Jewett wrote something on the execution.</p> <p>That something, turns out to have been an assignment to E. D. Hoskins, but solely for the benefit of Wadleigh.</p> <p>Thus, from the testimony of Crosby and the act of Jewett, the conclusion cannot be otherwise, than a design to exempt Wadleigh from the payment of the execution, which in the language of the statute, so far as it regards him, was settled, canceled or discharged.</p> <p>In the case, Jewett Sf al. v. Wadleigh fy al., 32 Maine, 110, the decision is based principally on the consideration that, as the laxo then was, an attorney was not authorized to receive a less, in payment of, a larger sum.</p> <p>It would seem that the agreement to Jewett & Crosby, under the circumstances, was made in order to uphold the execution for Wadleigh’s benefit; for all the parties then must have contemplated that the cash and notes secured by E. D. Hoskins was to be in full, which notes were paid though not promptly. All the damages recoverable was the interest on the notes after they became payable, which the plaintiff has received.</p> <p>That agreement says that the execution was “settled.” “ Whereas, we have settled an execution,” is the language.</p> <p>Crosby swears to the same effect, that at Wadleigh’s request, there was a transfer instead of a discharge.</p> <p>The testimony of Crosby was inadmissible. The matter was not for the jury. It is merely a report to be decided on the parties’ legal rights. Inadmissible testimony, then, is not to have influence.</p> <p>Our objection is, that it was introduced for an unallowable purpose.</p> <p>The statute cited by the counsel can have no effect he're. It is not to operate retrospectively.</p>

On Report from Nisi Prius, Hathaway, J., presiding. Assumpsit. The declaration contained two counts. A small dwellinghouse stood upon the land of a third person. It was occupied by one Parody. The defendant sold it to the plaintiff, at the price of $50, and gave a bill of sale, describing it as “ the house now occupied by Parody, and acknowledging to have received pay by two notes, one of $20, and one of $30.

<p>On Report from Nisi Prius, Appleton, J., presiding.</p> <p>Case.</p> <p>The plaintiff, in 1846, commenced an action of trespass muaré clausum fregit, against one Willa, and, in June, 1851, recovered judgment therein, damage $1, cost $37,26.</p> <p>In 1847, while that suit was pending, Willa fraudulently and without consideration transferred his property to the defendant for the avowed purpose of keeping it from seizure •on the execution which the plaintiff might in that action ¡recover.</p> <p>This suit was brought on Dec. 22, 1851, and was founded on R. S., c. 148, § 49, for aiding Willa in the fraudulent transfer or concealment of the property.</p> <p>The case was withdrawn from the jury and submitted to the Court.</p> <p>This statute provides “ that any person who shall knowingly aid or assist any debtor or prisoner in any fraudulent concealment or transfer of his property, to secure the same from creditors, and to prevent the seizure of the same by attachment, or levy on execution, shall be answerable to any creditor, who may sue for the same, in double the amount of the property, so fraudulently concealed or transferred; not, however, exceeding double the amount of such creditor’s just debt or demand.”</p> <p>The facts present the exact case, which the statute was designed to meet, unless it be that the plaintiff was not a creditor of Willa. We contend he was such a creditor within the intendment of the statute.</p> <p>Webster defines the term creditor to be “ a person to whom a sum of money or other thing is due, by obligation, promise, or in law,” “ Correlative to debtor.”</p> <p>Willa had invaded the plaintiff’s rights, and done him an injury. A demand thence arose, which he was morally and legally bound to satisfy. Was not here, then, “money or other thing due,” both by “ obligation” and “ in law ?” Could not the plaintiff have obtained that money, if the defendant had not wrongfully interfered to take the defendant’s property ? and the taking was precisely in the language of the statute, “ to prevent the seizure by attachment or levy.”</p> <p>The reason of the statute extends as fully to persons in- - jured by a trespass as to one holding a promissory note.</p> <p>Upon recovering his judgment, the plaintiff instantly became a creditor, if he was not so before. Meserve v. Dyer,</p> <p>4 Maine, 52. But though the defendant took the property before the judgment was recovered, he has continued to retain it till this time, and that retaining is to be treated as a renewal of the taking every day. Hence he took it and held it when the plaintiff was undeniably a creditor.</p> <p>But it may be said that, at the time of the defendant’s fraudulent taking, the plaintiff’s damage was unliquidated. But the legal maxim is, that “ that is certain, which is capable of being made certain,” and the damage was reduced to a certainty before this suit was brought.</p>

On Report from Nisi Prius, Appleton, J., presiding. Bill in Equity. The hearing was upon bill, answer and proof. It appeared that Dwinel, being indebted to the Commercial Bank, conveyed to them, in 1839, several parcels of land, and took back a bond for a re-conveyance on payment of the debt. The bank having received payment conveyed the land, in Sept. 1843, at DwinePs request, to Veazie, who gave his bond to reconvey on performance of certain conditions.

<p>Fy the statute of 1846, § § 11, 12, if a person had received payment for liquor sold by him in violation of law, the amount might be recovered of him in a suit at law by one to whom the purchaser was indebted.</p> <p>In such a suit, brought against a co-partnership, there is a failure of proof, that the sale was in violation of law, if one of the co-partners had license to make such sales, unless it be shown, that the sale was made by the other.</p> <p>In such a case, the presumption of law is, that the sale was made by the co-partner who had a right to make it.</p>

On Exceptions from Nisi Prius, Appleton, J., presiding. Assumpsit. The defendants had occasion to make a new road. They voted money for the purpose, and appointed a committee of six men to let out the job on contract, and to superintend the work and to adjudicate upon its fulfillment. The committee staked out and marked the lines for the road, and contracted with the plaintiff to make it upon that route for $195, which sum he received.

<p>The proper width of a street must depend upon the amount of travel passing over it, upon the business transacted in it, and upon the comfort of those residing or doing business upon it.</p> <p>tVitli a view to such, uses, the authorities may rightfully locate streets in different parts of the city, varying much in their widths and consequent accommodations.</p> <p>The Act of 1845, c. 256, relating to the city of Bangor, referring to the legal voters the necessity or expediency of erecting public buildings or making public improvements, which should require an expenditure exceeding three thousand dollars, does not apply to the establishment of public streets.</p> <p>To obtain a decision whether the proceedings in establishing streets have been legal, the process is by certiorari.</p> <p>Upon a hill in equity brought for such purpose and praying injunction, the proceeding will not be examined.</p>

<p>Whether there was probable cause for a criminal prosecution, is a question of law upon the facts; if, as to the facts, there be no disagreement in the testimony, the question is one of law only.</p> <p>In an action for a malicious prosecution, if there be no testimony that the accused committed the crime, or that the prosecutor had been informed or knew of any fact-inducing a belief that he had, the law itself pronounces that there was no probable cause, and leaves nothing to be submitted to the jury.</p>

<p>Where several owners of logs separately employ the same drivers, or where _ they separately contract for the driving with a person, who employs the same drivers, and, in the drive, all the logs get intermixed, their respective liens are not collectively upon the whole mass of logs, but are distributed upon the logs of each ownership, according to the amount of labor bestowed thereon.</p>

On Facts agreed. The defendant received a conveyance of land from one Freeman Nye, and ,two days afterwards gave an obligation to reconvey, if within eighteen months Nye should pay seventy-five dollars and interest and taxes. A few days before the end of the eighteen months, the defendant gave to the plaintiff an agreement without seal, that he would convey the land to him, as soon as the bond should expire which was given to Nye, if Nye should not choose to redeem it.

On Report from Nisi Prius, Appleton, J., presiding. Case, against the sheriff for the default of his deputy. Three or four owners of logs of six different marks, to the value of $5000, contracted with one Stinson to drive them. Stinson employed the plaintiff with others to do the work. In the course of the drive, all the logs became intermingled. Certain proofs offered in defence are noticed in the opinion of the Court.

<p>On Report from Nisi Prius, Appleton, J., presiding.</p> <p>In Equity.</p> <p>The case was heard on bill, answer and proof.</p> <p>The Judge’s report of the case is substantially as follows: —■</p> <p>The bill was instituted by John C. Gilmore against Martin Gilmore, Robert Patterson and Phineas Pendleton, jr. The several defendants have duly filed their answers. Since filing his answer, and since the taking of the proof, Martin Gilmore has deceased, dying at sea, insolvent, (leaving no estate,) and be administrator has been appointed upon his estate, and he is not represented in the cause. Phineas Pendleton, jr. in no way contests the plaintiff’s claim, but submits himself to the order of the Court. The controversey, therefore, is entirely between John C. Gilmore and Robert Patterson.</p> <p>In January, 1846, John C. Gilmore and Martin Gilmore entered into partnership at Point Pleasant, in Virginia, to carry on mercantile and shipbuilding business. The business was continued till Dec. 1, 1848, when the plaintiff sold out his interest in the goods in their store to Martin Gilmore, but the partnership was continued by agreement, for the purpose of disposing of the partnership property then on hand, and paying the debts and settling the affairs of the firm.</p> <p>On April 1, 1848, the co-partnership owned a brig of the value of $8000, or thereabouts ; they then agreed that Martin Gilmore should take the brig to Boston to be sold for the benefit of the firm, Avhich he did, and there sold her to the defendant Pendleton, for $8250, taking his notes running to said Martin, instead of the firm to whom the brig belonged. These notes, or a portion of them, remained in the hands and under the control of Martin till Oct. 1849, when he became embarrassed, his property was attached, and he was arrested at Point Pleasant, at the suits of creditors of the firm resident there.</p> <p>The firm was then, and before, insolvent, and still owes large amounts, and the notes given for the brig are needed for the payment of the just debts of the firm, and this bill is brought by the plaintiff to obtain them for that purpose.</p> <p>On the 15th of Oct. 1849, without the knowledge or consent of the plaintiff, Martin Gilmore inclosed two of the notes, each to the amount of $2666, payáble in two and three years, in a letter, and sent them to the defendant Patterson, at Belfast, in this State. The letter, inclosing the notes, is called for in the bill, and the answer alleges it to be of the following tenor.</p> <p>“ Dear Sir: — Inclosed you will find two notes against Phineas Pendleton, jr., which I assign to you and some other creditors in your parts, as surety for what I owe you; but I do not want you to take any steps to collect them till I see you. If it is so that you can come and see me, I shall like to have you, as I am'in jail and cannot go to see you.</p> <p>“Yours, &c., Martin Gilmore.”</p> <p>Shortly after the receipt of that letter, Patterson proceeded to Point Pleasant, where he arrived on Nov. 5, 1849 ; and he states in his answer that, on his arrival, and on the same day, in the afternoon or evening, he saw Martin in jail, relating to his claims against the firm ; that they computed the interest, and found the whole amount, principal and interest, due him from the firm to be $3900 ; that, by agreement with Martin, he gave up all claims against the firm and discharged them, and surrendered up their notes, the dates and amount of which are specifically set forth in the answer ; and that, in consideration therefor, Martin transferred said two notes to Patterson, under an arrangement specified in an instrument in the hand writing of Patterson, but signed by Martin, as follows:—</p> <p>“Point Pleasant, Nov. 5, 1849.' Received of Martin Gilmore two notes, by letter dated October 15, 1849, against R. Pendleton for $2666,00. Said notes dated Boston, June 17, 1848, and I have this day given up to said Gilmore, M. & J. O. Gilmore’s notes and interest on said notes to the amount of three thousand, nine hundred dollars.</p> <p>“ Now it is agreed by said Gilmore that said Patterson may get said notes cashed at the best rates he can, and apply the funds to the payment of the notes given up and interest since, and a reasonable pay for all his travel and expense in the same. And the assignment as security on said notes is void, and his blank indorsement on said note is to be good against him, waiving demand and notice in any way, and if said notes shall overpay the notes given up, said Patterson is to pay the balance to some one of M. & J. C. Gilmore’s creditors, as Gilmore shall direct. The two notes against Pendleton are payable in two and three years with interest from date. “ Martin Gilmore.”</p> <p>The notes were produced by Patterson at the hearing, and had the indorsement of Martin Gilmore thereon.</p> <p>Though Patterson remained some days at Point Pleasant, it does not appear that he had any interview with the plaintiff there.</p> <p>No further proof was offered of the time when the indorsements on the notes were made, unless the answers be such proof.</p> <p>No evidence was introduced of the claims of Patterson against the firm of J. C. & M. Gilmore, or of the transmission of the notes, or of the settlement made in jail, except his answer and the answer of Martin Gilmore, which Patterson claims to use as evidence in his favor.</p> <p>The bill charges that Martin delivered said notes to Patterson with the fraudulent design of secreting them from plaintiff and from the creditors of the firm, and of fraudulently appropriating them to his own use ; and that Patterson knew of sueh design and received them in aid of its execution, all which is denied by the answers both of Patterson and Martin, which concur in every material particular. Plaintiff introduced much evidence of a circumstantial nature to show the fraud on the part of Martin, and notice to and cooperation on the part of Patterson, but on carefully considering the evidence, I do not find sufficient evidence of fraud and collusion on the part of Patterson to overcome his answer.</p> <p>The Judge appointed a receiver, to whom the notes against Patterson should be delivered.</p> <p>Upon the foregoing report, the Court is to render such decree as the rights of the parties may require.</p>

On Report from Nisi Prius, Appleton, J., presiding. Trespass quare clausum. The County Commissioners had laid out a road across the plaintiff’s field, and the town of Brewer, where he dwelt, were obliged to open the same. The plaintiff’s damages were allowed and paid. All the proceedings were in accordance with the Btatute provisions.

<p>On Exceptions from Nisi Prius, Hathaway, J., presiding.</p> <p>Indictment, against the respondent, for being a common victualler without license.</p> <p>The defendant objected to the indictment, that the statute on which it was brought had been repealed or become invalid by force of certain subsequent statutes. But the Gourt ruled otherwise, and the defendant was convicted.</p> <p>The section of the statute upon which this indictment is based has been repealed by the liquor laws of 1846 and 1851.</p> <p>It is unnecessary always to expressly repeal a statute that it may no longer be binding. Towle v. Marrett, 3 Maine, 22.</p> <p>To ascertain the meaning of a law, the Court may look to the object in view, the remedy intended and the mischief to be remedied. Winslow v. Kimball, 25 Maine, 493.</p> <p>The object of a license and restraint upon a victualler, was to regulate in them the sale óf intoxicating drinks. That was a part of the business and definition of “ common victualling,” the furnishing of liquors. State v. Burr, 10 Maine, 438.</p> <p>When the law of 1846 was passed, which prohibited sales of liquor altogether, and provided new modes and remedies, there was left no such offence as that of common victualling ; there was left no object for the law, no mischief to be remedied. The entire prohibition of sales, made in the Act of 1851, has repealed all those statutes founded merely on a purpose of restraining or regulating that business to which selling was an incident.</p> <p>Under the Revised Statutes, there was a board of license, consisting of aldermen, treasurer and clerk, and a victualler must obtain a license of that board. But now there is no such board. By § 2, c. 211, of Laws of 1851, the only board of license are the aldermen, or in towns, the selectmen. It cannot be that there are two boards of license ; to wit, one board consisting of aldermen alone, and one of aldermen, with clerk and treasurer added. Still there is no provision for a victualler to have a license from the board of 1851, and if this indictment is well founded, there can be in the whole State no such thing as licensed common inn-holding or victual-ling. The reasonable construction of the statute would be, that there is now no requirement for a license; and common victualling, without the sale of intoxicating drinks, is no offence. That is, that inn-holders and victuallers are now punishable at common law, for all nuisances, and at statute only, as sellers. They are as much reached as before, only in a different mode, and under another appellation. -</p>

On Report from Nisi Prius, Hathaway, J., presiding. Assumpsit on account for services rendered. The facts found upon the evidence reported, appear in the opinion of the Court.

<p>On Report from Nisi Prius, Hathaway, J., presiding.</p> <p>Covenant broken.</p> <p>The deed of defendant was dated November 16, 1840, containing the usual covenants of warranty. The description was “ being lot in fifteen hundred acre tract (so called) No. 170, according to the survey and plan of Andrew Strong and Robert Houston, containing fifty-six acres and 135 rods, and being bounded and described as follows; viz., beginning at a stake and stones at the south-east angle of Benjamin Warren’s land; thence north by said Warren’s land 107 rods to a stake and stones; thence east by Richard Smart’s land, 85 rods to a stake and stones; thence south by Benjamin Tripp’s land, 107 rods to a stake and stones; thence westerly to the highway 85 rods, to the place begun at.”</p> <p>An office copy of a deed of warranty was also put into the case by plaintiff, from Simeon Haynes to Benjamin Warren, dated and recorded in 1811, of three acres out of the southwest corner of lot 170.</p> <p>The plaintiff also introduced evidence of a public road over a portion of lot 170, for more than 30 years, and of the damages, both as to the road and the value of the three acres formerly sold to Warren, and that the plaintiff never lived in the vicinity of the land.</p> <p>The sketch attached will show more distinctly, the nature of the plaintiff’s complaints, by the road across lot 170, and the three acres sold to Benjamin Warren.</p> <p> </p> <p>Before Warren bought the three acres, he owned the land adjoining lot 170 on the west.</p> <p>. It was stipulated that the Court might draw such inferences of fact as a jury and should enter judgment by nonsuit or default, according to the legal rights of the parties, and if a default should be ordered, the damages should be assessed by the Judge who presided at the trial.</p> <p>The description in the deed to plaintiff, by comparing it with the plan, appears to cover the whole of lot 170, without any reservation or exception whatever. As to any effect upon the general words by a more restrictive description, I cite Keith v. Reynolds, 3 Maine, 393; Ball v. Barnum, 11 Mass. 3 63 ; Coller v. Tufts, 3 Pick. 272.</p> <p>It may be said, that “ the south-east corner of Benjamin Warren’s land” may be regarded as at the S. E. angle of the three acre lot, and that the deed from defendant to plaintiff does not embrace the three acre lot, &c.</p> <p>This cannot be so, the plan negatives any such construction, and the defendant’s deed will not admit of any such construction. It conveys the entire lot, No. 170. The first bound is fixed at “ the south-east angle of Benjamin Warren’s land.” “ Thence north by said Warren's land, 107 rods,” to Richard Smart’s land, &c. Suppose the point of beginning is regarded the south-east comer of the three acre lot, thence north, “ by said Warren’s land, 107 rods,” &c., he cannot go north or northerly on this line, “ by said Warren’s land, but 22 rods,” and this line would then, in order to reach the north end of the lot, run through the centre of the 170 acre lot. This construction cannot prevail. Again, suppose we take the south line of the lot No. 170, on the highway. The distance of this lot, fixed by the original plan and survey is precisely the same, as across the rear of the lot, to wit, 85 rods. By adopting the construction, that the three acre lot is not included in the defendant’s deed, would leave the line on the highway less than 70 rods.</p> <p>This cannot be adopted, and even upon this construction the highway, including near an acre, would be included in the deed, and not reserved or excepted therefrom.</p> <p>By the first portion of the description alone, in plaintiff ’s deed, the whole lot would undoubtedly pass. But this is modified and controlled by the definite boundaries specified in the second portion. It is a well established rule of law, that definite boundaries in a deed limit and control general terms previously used. Thorndike v. Richards, 13 Maine, 430 ; Allen v. Allen, 14 Maine, 38T.</p> <p>In the construction of this description, the manifest intention of the parties to the deed is to govern. This may be reached by the boundary being made upon Warren’s land, evidently meaning not to convey any which he owned. And again, the Court may gather the intention from the price received for the land which defendant says was sold, and the value of the three acres, which the plaintiff is now endeavoring to make him pay for. Instead of the consideration paid, the plaintiff should have paid four times the sum he did. Jameson v. Palmer, 20 Maine, 425 ■ Peering v. Long Wharf 25 Maine, 51.</p> <p>The location of the highway over a small parcel of the land conveyed, did not create a breach of the covenants of seizin. It gave the public a right to use the land over which it was established, a mere easement in the soil. The fee and title in and to the soil, subject to the easement, was in defendant. He was therefore legally seized of the land covered by the road, and had good right to sell and convey it.</p> <p>But was the covenant of defendant in the deed against incumbrances broken? I am constrained to admit, that under the decisions of this Court, the highway was an incumbrance, and that the action may be maintained on this covenant against defendant. On this ground alone, a default must be entered.</p>

<p>A contract signed by a party upon receiving the possession of personal property, and containing his promise to pay for the same, and also an agreement that the property shall remain the property of the other party till the payment should be made, is not a bailment but a conditional sale.</p> <p>If such a contract, though not signed by the vendor, describe the property as “ in good order and condition,” such description is equivalent to a representation, and, if he knew it to be untrue, will vacate the contract.</p> <p>But, though untrue, it will not have that effect, unless, at the time of mak- . ing it, it was known to be untrue.</p> <p>A surety cannot be discharged on the ground of fraudulent representations made to his principal, except when that principal would be.</p> <p>That concealment by a vendor in the sale of goods, which would entirely discharge the surety of the vendee, is a concealment of facts, known to the vendor and not known to the vendee or his surety, being facts of a character to increase materially the risk beyond that assumed in the usual course of business of that kind, the vendor having a suitable opportunity to make them known.</p> <p>After chattels have been delivered by the principal in part payment of his note, it is competent for him to adjust their value with the payee, and his written admission upon the contract of the amount remaining due, will be. binding upon his surety, unless there be proof of error or fraud in making it.</p> <p>IParol testimony eannot be received to give the effeet of a mortgage to a bill of sale, absolute in its form, though not under seal.</p> <p>Though a bill of sale may purport to be for a cash consideration already paid, it is competent to prove by parol that the payment was not made in cash, and also to show in what mode it was made.</p>

On Report from Nisi Prius, Appleton, J., presiding. Debt. On June 10, 1836, William Abbot, administrator of the estate of Alexander Townsend, “ gave to the plaintiffs a bond binding himself, his heirs, executors and administrators in the penal sum of $2000, conditioned, that whereas the said Abbot had agreed to sell and convey to the plaintiffs by a good and sufficient deed of warranty, a tract of land [described,] and is to receive for the same the sum of $10,500, with…

<p>Where a person, in the possession and improvement of an estate, claiming to "be the agent of the owner, neglects to keep an accurate account of the income and expenditures pertaining thereto; in stating the account between "them, the master may reject the account presented by the trustee, and exercise a.seund discretion upon the Whole evidence before him, in charging the trustee with the income of the estate, and allowing him for such charges and disbursements, as shall appear to be reasonable.</p> <p>Where there is fault on the part ef the owner in not complying with his contract, although no proper account has been kept by the trustee, he is not chargeable with the utmost that might have been made out of the estate.</p> <p>-Exceptions to the report of a master, to avail, must either be supported by the special statements in that report, or by the production of the evidence on which they rest.</p> <p>The necessary expenses, incurred by a subsequent mortgagee, to redeem a prior mortgage, which it was the duty of the mortgager to eancel, are justly chargeable upon the owner of the estate.</p> <p>Wpou a sum acknowledged to be due at a time specified, between the cestui que trust and the trustee, interest may legally be allowed.</p> <p>"Where a person taires a mortgage to secure advances and credits to be made to the mortgager within a time limited therein, no advances or credits after the time so limited, will be secured by that mortgage.</p> <p>Where the parties to a bill, at the time of making their contract, recognized the existence of a debt due from one to the other, the consideration of that debt cannot afterwards be a subject of inquiry.</p>

On Exceptions from Nisi Prius, Appleton, J., presiding. Debt, on a poor debtor’s relief bond. A disclosure was made within the six months allowed in the bond, by the debtor, and the oath prescribed by law administered to him, on Dec. 8, 1851.

<p>Chapter 138, § 2, of It. S. requires the report of the referees under that Act to be made to the District Court for the county, within one year from the date of the agreement.</p> <p>The Court intended, by that section, is the one, holding its regular session, for the transaction of its ordinary business for the county.</p> <p>And a report, not made to such Court, within the year, is inoperative.</p> <p>When such report is made after the time limited in the submission, though recommitted to the referees by the presiding Judge, this will not give them subsequent jurisdiction.</p>