Volume 37 — Maine Reports

On Exceptions from Nisi Prius, Rice, J., presiding. Assumpsit for the support of a pauper from May 1,1852, to May 1, 1853. Tbe pauper was tbe son of plaintiff whose residence was in Jay. He was about 26 years of age, bad been insane four or five years and bad always been a member of plaintiff’s family. It was admitted that the father had not sufficient property to be liable for the pauper’s support.

On Facts agreed. Writ op Dower. The plaintiff was lawfully married to Jotham Smith in 1831, and he died in 1850, and demand of dower in the land described in plaintiff’s writ was made in March, 1853.

On Exceptions from Nisi Prius, Howard, J., presiding. Trespass quare clausum, for cutting and carrying away timber from Township No. 3, Range 3, in the county of Franklin. The defendants pleaded the general issue, and filed brief statements alleging:— 1. That the title to the premises, at the time of the alleged trespass, was in parties other than the plaintiffs: — 2. That the title was in the heirs of one Rufus Davenport; 3.

On Exceptions from Nisi Prius, Wells, J., presiding. Assumpsit on a promissory note signed Jo siah Emery, John O. Manter, James Outts, surety.” It was payable to one Joseph Merry, and by him indorsed to plaintiff “ not holden,” when it was overdue. The defendant Em'ery was defaulted.

<p>The judgment of a Court having general jurisdiction of the subject matter of the suit, and purporting to be recovered against an inhabitant of the county where it is rendered, while unreversed, cannot be collaterally im- ■ peached.</p> <p>Such judgment is a sufficient foundation for a levy, although there may have been some error in the date of the writ, the service thereon and the term of the Court at which the action should have been entered.</p> <p>Tor the validity of a levy on land, it is not necessary that the appraisers should be residents of the county where the land lies.</p> <p>When the defendant appears and pleads to the merits of the suit he thereby waives any objections to the want of service of the writ.</p> <p>Where the deed, under which the demandant claims title, is introduced by him without objection, this furnishes prima facie evidence of its execution and delivery on the day of its date.</p> <p>If the demandant mortgage the land sought to be recovered, to a third person, after action brought, it will not prevent his recovery.</p>

On Exceptions from Nisi Prius, Howard, J., presiding. Trespass for taking the plaintiff’s cow. The defendant justified the taking, as an officer, by virtue of a writ of replevin in favor of one North against the plaintiff. In support of the justification he read the replevin writ and bond.

On Report from Nisi Prius, Howard, J., presiding. Debt, on a judgment of the County Commissioners of Somerset county, rendered in March, 1838. The writ is dated July 18, 1851. The defendants put in three several pleas, the last of which was the statute of limitations, to which there was a demurrer and joinder. There was also an issue upon the plea of nil debet.

<p>On Facts agreed.</p> <p>Assumpsit, for supplies furnished to paupers, whose settlement was alleged to be in the defendant town.</p> <p>Notice was legally given of the supplies furnished, and a denial of the defendants’ liability seasonably made.</p> <p>On July 17, 1849, the paupers had their legal settlement in the town of Carthage. On that day an Act of the Legis.lature was approved to set off a part of Carthage, and to incorporate the same into a plantation by the name of plantation No. 4. The paupers resided, at that time, on the territory so set off, and ever had, while living in Carthage.</p> <p>If on these facts the plaintiffs are entitled to recover, the judgment is to be rendered for the amount sued for, otherwise for the defendants.</p> <p>The Act of July 17,1849, does not change the settlement of the paupers by any of the modes of acquiring a new one, specified in c. 32, R. S. The 4th mode in § 1, relates only to acquiring a settlement by the division of any town into two or more toions ; and by the incorporation of a new town out of it.</p> <p>The Act of July 17, 1849, is not a division of the town of Carthage in the sense in which the term division is used in the R. S. in the 4th mode. It does not contemplate the forming of one part of a town into a plantation.</p> <p>No powers are given to the inhabitants set off by the Act of July. They are in an anomolous condition, having neither the powers of towns or organized plantations, and remain to this day without any kind of organization for political or municipal purposes.</p> <p>The 17th rule of construction of the R. S., is not to be construed so as to change, alter or enlarge the powers, duties and liabilities of organized plantations as'set forth and defined in other chapters of the R. S. Act of March 22, 1843, c. 20.</p> <p>Plantations are said to be quasi corporations with limited powers. They have none, except what are given by statute, or implied from such as are given. The general provisions of the pauper law cannot be extended to plantations without further legislation. The statute does not require plantations to relieve and support their poor, none of its pro'visions extend to them. The 53d §, e. 32, R. S., empowers them to raise money for the relief of the poor therein, but does not impose it as a duty. Blakesburg v. Jefferson, 7 Maine, 125, also Means v. Blakesburg, same vol.,p. 132.</p> <p>The facts find the settlement of the paupers in Carthago, since which, in none of the modes specified in R, S., c. 32, have they gained another.</p> <p>It is admitted the paupers were inhabitants of and acquired their settlement in that part of Carthage which was Nset off into a plantation” by a special Act of the Legislature of 1849, c. 214.</p> <p>By that Act the town of Carthage was divided, and a certain part, together with the inhabitants, set off as aforesaid. Of the inhabitants so set off the paupers were a part.</p> <p>If the part so set off had been annexed to another town, the settlement of these paupers would have no longer continued in Carthage. R. S. c. 32, § 1, Art.- 4; Great Barrington v. Lancaster, 14 Mass. 429 ; New Portland v. Rumfford, 13 Maine, 299; New Portland v. New Vineyard, 16 Maine, 69; Smithjield v. Belgrade, 19 Maine, 387; Belgrade v. Dearborn, 21 Maine, 334.</p> <p>It is contended that the same principle applies in this case.</p>

<p>The corporate character of a plaintiff proprietary is admitted by pleading the general issue.</p> <p>Where the plaintiffs organized themselves into a proprietary, and claimed and exercised control over a township, making sales of the land, holding possession of the contracts made by their agents, and of the notes given on such contracts, and have received payments for the land; it was held, that the tenant, holding under one who had recognized their rights, could not dispute their title.</p> <p>The law will not presume a conveyance to have been made to a party in possession of land for many years, against his express admissions that no such conveyance has been made.</p> <p>Where a party, in possession of land under a contract with the owner, has paid the amount due for the purchase money, the land is held in trust for the benefit of the party in interest, and his rights may be obtained by pro-> Ceedings in equity.</p>

<p>In an action involving the boundaries of the land, the grantor is a competent witness for the grantee, after he is released from his covenants of warranty, notwithstanding he has reserved in Ms deed the right to retake possession, and have the use of the same during his life, should he need it for Ms support.</p> <p>In determining the place where a monument, described in a deed, stood, the acts of the proprietors of the adjoining lots, in ascertaining and establisMng the old boundary, many years before a question concerning its location arose, are admissible in evidence.</p>

On Report from Nisi Prius, Wells, J., presiding.' Assumpsit, on a note of hand.

<p>On Report from Nisi Prius, Wells, J., presiding.</p> <p>Trespass, quare clausum.</p> <p>The brief statement filed by the defendants set forth, that the locus in quo was a common and public highway, &c., and the acts by them done, were what they might lawfully do in passing and repairing the same.</p> <p>Before the alleged trespass the town of Livermore had discontinued the way, and the plaintiff had enclosed it and put it in a state of cultivation.</p> <p>The plaintiff derived his title to the premises from two deeds of warranty, one .from E. G-. Howard, in 1836, in which was this clause — “ reserving roads as now traveled through said premises;” the other from Oliver Pettengill, in 1850, in which was the following, — “reserving a privilege for all public highways legally across the same.” [The facts proved appear in the opinion.]</p> <p>The case was submitted to the Court, upon the evidence reported, for a decision in accordance with the law.</p> <p>1. The right of way may be acquired by user, and the right thus acquired will be coextensive with the use. When such use continues twenty years, the presumption in favor of the right becomes conclusive. Coolidge v. Learned, 8 Pick. 504; Sargeant v. Ballard, 9 Pick. 251; Bolivar Manf. Co. v. Neponset Manf. Co., 16 Pick. 241.</p> <p>This rule is recognized in our R. S., c. 141, § 14.</p> <p>2. The use of this way in Livermore was never limited so as to make it a private way, nor ;was it limited in its use to the inhabitants of Livermore so as to make it a town way. It was used as a thoroughfare from Kennebec to Paris and the western part of Oxford county. Therefore the town of Livermore had no power to shut it up, and their vote discontinuing it was void.</p> <p>3. But the plaintiff has introduced some records of the town here from which it may be contended, that this way was laid out by the town of Livermore. To this we have two answers. — 1. May not a laying out or dedication of a way, coextensive with its use, be presumed and be as effectual for all practical purposes, as if such proceedings had been had, provided such use has been continued, open and notorious for upwards of 30 years; a private way may be enlarged by user into a town way, and a town way into a highway or thoroughfare. 2. But the original laying out was not in conformity with law. It does not appear, that any report to the town of the laying out by the selectmen was made previous to the vote of acceptance. The article in the warrant “ to accept and discontinue roads,” was too general in its terms to authorize the acceptance of any road that might be prepared. There is no width given for the road, it is a mere line. Neither is it stated in the vote of acceptance whether the “road” was understood to be a highway, town way or private way. The character of the way is not attended to and none of the proceedings are conformable to law. Todd v. Rome, 2 Maine, 55; Harlow v. Pike, 3 Maine, 438; Young v. Garland, 18 Maine, 109 ; State v. Sturtivant, 18 Maine, 66 ; Christs Church v. Woodward, 26 Maine, 112; Carlton v. The State, 8 Blackford, 208; Hayes v. Shackford, 3 N. H. 10.</p> <p>4. We contend, that the Court should make a distinction in records that are legal as far as they go, and are only deficient in not stating all the requirements of law, and those which show proceedings none of which are conformable to law. If those of the latter class are put in, they should not be allowed to rebut the presumption of law arising from more than 30 years use of the road by the public.</p> <p>5. The plaintiff fails to prove his title to the locus in quo. There is a reservation in his deed not only of the right of way, but of the land itself covered by the way.</p> <p>6. The town meeting at which the vote of discontinuance took place, was continued till after the road was fenced up by the plaintiff and till after the obstruction had been removed by the defendants. Such a vote commonly takes effect from the time when the meeting was finally adjourned, because during all that time, the article could not be considered as disposed of, the town having the right to re-consider the vote of discontinuance at any time during the same meeting; and that pending such meeting the road could not legally be shut up.</p>

<p>Where the plaintiff referred to a third person to show the corner boundary of his land, and such third person pointed out a stump as such corner; the act is in the nature of an admission, and admissible in evidence against the plaintiff.</p> <p>Traditionary evidence, in relation to thb boundaries of a private estate, when not identical with une of a public nature, cannot be received.</p> <p>The authenticity of a plan cannot be established by certificates made upon it by one deceased, who was not the surveyor.</p> <p>Neither the declarations nor certificates of a deceased person, concerning the limits and boundaries of lots between individuals, of which he was never owner nor possessor, are admissible as Evidence.</p>

<p>On Report from Nisi Prius, Wells, J., presiding.</p> <p>Trespass quare clausum, and cutting two trees.</p> <p>The cutting of the trees was admitted, and their value; and both parties claimed title to the land on which they stood.</p> <p>The plaintiff claimed title under a levy made in 1842, upon the land as the property of William Prince, on an execution in favor of William Cousins, and by a deed of the land levied upon, from said Cousins to himself, dated in 1845.</p> <p>The defendant traced his title, by introducing a deed of warranty from James Dunn to Robert Waterman, for the consideration of $500, dated May 3, 1814, in which the description was in these words, “ a certain tract of land situated in Hebron, in the county of Oxford, containing sixty-seven acres more or less, and being on the north side of the lot marked ( 0/ in said Hebron, (now Oxford) with privilege of a road or roads through the samé if necessary, and being the same land I purchased of Joshua, Abba and Godfrey Grosvenor.”</p> <p>Also a deed from said Waterman to William Prince, dated May 12,-1817, for the consideration of $450, containing the same description in the deed of James Dunn, excepting that it concluded thus, “ being the same I purchased of James Dunn.”</p> <p>Also a deed from said Prince to Mary Chipman, dated Oct. 26, 1836, for the consideration of $167, in which the description read thus: “ a certain tract of land situated in said Oxford, containing twenty-five acres, (more or less,) and being on the north side of the lot marked “ G,” in said Oxford, with the privilege of a road or roads, if necessary, through the same, it being the same land I purchased, and was deeded to me by Robert Waterman.”</p> <p>Also a deed from said Chisman and her husband to Orville Byram, dated April 24, 1838, for the consideration of $200, in which the description read thus; “ a certain tract of land situated in Oxford, containing twenty-five acres, more or less, and being on the northerly side of lot marked ‘ G,’ in said Oxford, with the privilege of a .road or roads, if necessary, through the same, it being the same land that William Prince, of said Oxford, bought of Robert Waterman.”</p> <p>Also a deed of mortgage of the same premises from said Byram to Amos Chipman, the husband of said Mary, with the notes unpaid and assignment of the same to the defendant.</p> <p>The plaintiff then introduced a deed to the defendant, of Diana Byram, dated Eeb. 23, 1847, conveying to him her right of dower in the land described in Chipman’s deed to Byram. Also a deed from the defendant to Harriet H. Faunce, dated August 12, 184.-8, for the consideration of $200, the description being the same as that in the deed from "William Prince to Mary Ohipman.</p> <p>There was much evidence introduced tending to show-by Byram’s declarations, while he occupied under his mortgage deed, that he claimed only 25 acres off lot “ G-,” and the acts of William Prince, during that time, as to his occupancy of part of lot “G-,” by pasturing and cutting wood, and Prince’s declarations to the officer who made the levy, “ that he sold off 25 acres only of lot “ GL” Chipman also testified, that in 1850, in answer to defendant, he told him “that he bought only 25 acres of William Prince.”</p> <p>There was much other testimony introduced by both parties, as to the acts and declarations of those connected with these several conveyances, and all the parol testimony was seasonably objected to by one or the other party.</p> <p>After all the evidence was out, it was agreed, that the case should be reported by the Judge, and submitted to the full Court, upon so much of the testimony as was legally admissible, and a nonsuit or default to be entered as the law may require. And in case a default shall be entered, the amount of damages was agreed.</p> <p>1. The levy conforms in all respects to the requirements of law and includes the land where the trespass was committed.</p> <p>2. Where a deed is of doubtful construction as to boundaries, the construction given by the parties, as shown by their acts and admissions, is deemed to be the true one, unless the contrary is clearly shown. Stone v. Clark, 1 Met. 378; Rockwell v. Adams, 6 Wend. 467; 3 Mass. 362; 10 Mass. 149 ; 1 Term R. 701; 8 Cow. 273; 7 East, 199 ; 7 Met. 484.</p> <p>3. Parol evidence of the practical construction given to a deed, by the parties thereto, or those claiming under them, is admissible, when the language thereof, especially in the description of the land conveyed, is doubtful. 16 Johns. 17; 8 Conn. 439 ; 10 Met. 27; Clark v. Withey, 19 Wend. 320; 4 Dana, 336; 13 Cow. 309; 7 Barr. 185.</p> <p>4. Deeds are to be construed so as, if possible, to effectuate the interest of the parties. Bryan v. Bradley, 16 Conn. 474; Thomas v. Sumner, 3 Sum. 170; Moore v. Griffin, 22 Maine, 350.</p> <p>5. The declarations of a former owner of land, made while he was proprietor of the estate, respecting the extent and boundaries thereof, are competent evidence against those claiming title under him. Treat v. Strickland, 23 Maine, 234.</p> <p>6. The defendant is limited by the terms of his deed, to twenty-five acres, and the land is situated according to the location at the time of the conveyance. 2 Ham. 327; 7 Wend. 136; 14 Wend. 625; 4 Monr. 63; 13 Ala. 31; Hackett v. Sawyer, 14 N. H. 65.</p> <p>1. The levy on which plaintiff relies, gives no title; because the officer’s return does not show, that the debtor, whose land was taken had any notice to select an appraiser, or that he did select one. R. S. c. 94, § 4; Munroe v. Reding, 15 Maine, 153; Bannister v. Higginson, 15 Maine, 73; Dwinel v. Soper, 32 Maine, 119.</p> <p>2. The deed from Dunn to Waterman conveys “sixty-seven acres, more or less,” on the north side of lot G. If there be no language in the deed more certain as to quantity than the words “ sixty-seven acres, more or less,” the words “more or less” will be rejected, and exactly sixty-seven acres will pass by the deed. Jackson v. Loomis, 18 Johns. 81; 19 Johns. 449; Worthington Sf al v. Hyler, 4 Mass. 205 ; Blaney v. Rice, 20 Pick. 62; Cutis v. King. 4 Maine, 482 ; Stone v. Clark, 1 Met. 378.</p> <p>3. The reference in the deeds from Dunn to Waterman, and from Waterman to Prince, and from Prince to Chipman, shows that it was the intention of the parties in each deed, to convey the same tract or parcel of land that each grantor had before had conveyed to him. These references being more certain than the number of acres mentioned in the deeds, as qualified by the words more or less, must control and pass the whole land which had been conveyed by the previous deed. Abbott v. Pike, 33 Maine, 204.</p> <p>4. The parol evidence in the case, to the construction, is inadmissible, and if admitted would not change the case.</p>

On Facts agreed. Trespass quare clausum. The plaintiff was in possession of the Forbes farm, so called. The defendant with his team passed over a portion of it, but within the side lines of a way which had been traveled upwards of twenty-four years, in going to and returning from the Eoberts farm, (so called,) and for other purposes. There the road terminated. The defendant owned the Eoberts farm, at the time of the alleged trespass, and also a forty acre lot adjoining.

<p>On Exceptions from Nisi Prius, Shepley, C. J., presiding.</p> <p>Assumpsit, for services rendered, on account annexed to the writ.</p> <p>The defence set up was, that the whole matter in suit had been referred under a parol submission to referees, who had made up and notified the parties of their award, allowing the plaintiff $50, and that this action was not upon the award.</p> <p>An account in set-off was also filed, for paying a note for the plaintiff, on which the defendant was surety, to the amount of $105. At the time of the commencement of this suit, this note was outstanding, and before the sitting of the Court to which the writ was returnable, the defendant paid and took up the note, and filed the claim for money paid in set-off.</p> <p>The presiding Judge' instructed the jury, that if they should find that the parties had agreed to submit the claim sued for in this action to referees, and that the referees had met and heard the parties, and made up an award, and that the parties had mutually agreed, that the award should be final, such award would be a bar to this action, the amount of such award not being included in it, although neither the submission nor the award were reduced to writing; that it was not necessary that the parties should have used the words “promise, or abide by,.or stand to it,” in order to constitute a mutual agreement, that it should be final; but that they must be satisfied that some words were used by the parties which constituted- an agreement that it should be final.</p> <p>He further directed them, that they should not allow any thing in set-off for the money paid by defendant as surety of the plaintiff, as charged in his account, because it was paid since the commencement of this action.</p> <p>The jury returned a verdict for plaintiff and defendant excepted.</p> <p>1. The Judge erred in saying to the jury that they must be satisfied that some words were used by the parties, which constituted an agreement that it (the award,) should be final. By law the jury were not, and should not have been confined to the words used, but should have been left to infer such an agreement from the agreement to refer, and from all the facts and circumstances in the case, or from words in connection with the acts of the parties. Herbert y. Ford, 33 Maine, 90; Copeland v. Hall, 29 Maine, 93.</p> <p>2. The Judge erred in directing the jury to- disallow the demand filed in set-off for money paid as surety, between the bringing of this suit, and the entry of the action. The right of set-off depends upon the construction of the statute, and by that any demand which the statute allows may be filed in set-off, if due and payable when filed. Call v. Chapman, 25 Maine, 28; R. S., c. 115, § 24, and on.</p> <p>To the point that an award of referees is not.binding upon the parties where the submission is by parol, unless they agreed at the time of the submission that it should be final, he cited 2 Greenl. on Ev. § § 69 and 72; Bouvier’s Law Diet, title Submission. And to the point that the money paid by defendant as surety for plaintiff, after the commencement of this suit, could not be allowed in set-off, he cited Varney v. Brewster, 14 N. H. 49; Cox v. Cooper, 3 Ala. 256, and other authorities cited in U. S. Dig. sup. yol. 2, p. 758, § § 14 and 15.</p>

On Report from Nisi Prius, Howard, J., presiding. Writ op Entry for possession of a tract of land. The land formerly belonged to the demandant. It is, however, claimed by^the tenant under a levy to himself, on an execution, issued upon a judgment of §2449,46, which he had recovered, on contract, against the Buckfield Branch Rail Road Company, of which company the demand-ant was alleged to be a member. The land was set off at the appraised value of §1000.

On Exceptions from the late District Court, Cole, J. Motion to accept an award of referees. The heirs of Asa Eastman claimed to recover for the damage done to their land, by the establishment of a town road across it. The plaintiff was. one of the heirs, and acting both for himself and the others, presented the claim before the defendants in a town meeting, by whom it was rejected.

On Facts agreed. Debt. A qui tarn action to recover a penalty for neglecting to appoint a sealer of weights and measures. The defendant was chosen one of the selectmen of Byron at the annual town meeting in March, 1852, and was duly sworn*and acted as such for the next seven months. The defendant and his associates neglected for all that time to appoint a sealer of weights and measures within that town.

<p>By § 5, c. 9, of laws of 1842, rail road compames are made liable for injuries by fire, communicated by their locomotives, to buildings or other property, andtnay effect insurance thereon in their own behalf.</p> <p>This statute liability is limited to property of a permanent nature, and on which insurance may be effected.</p> <p>Por injuries to other property, by fire, they will only be responsible in consequence of negligence, unskilfulness or imprudence in running or conducting their locomotives.</p>

On Facts agreed. Petition for Partition. This case was heard at the October term, 1850, and continued on report. The questions arising thereon were argued before the full Court at the May term, 1851, and the opinion ofathe Court certified to the clerk on April 17, 1852, directing judgment for partition in lot No. 3, as prayed for, and .the denial of the petition as to another lot. The clerk thereupon made the entry on the docket under the petition.

On Exceptions from Nisi Prius, Wells, J., presiding. Assumpsit, on account, brought before a justice of tbe peace, where the plaintiff obtained a judgment and the defendant appealed to the Supreme Judicial Court. When the action came on for trial, the plaintiff moved that the action be dismissed for want of a legal recognizance. This motion was overruled, and furnished the ground of the exceptions. A verdict was returned for defendant.

On Report from Nisi Prius, Wells, J., presiding. Assumpsit, on a promissory note, dated May 8,1846, for $500, payable to Benjamin Webber with interest,-in one year from the seventh day of June following, signed by Pattee as principal, and the other defendants as sureties. On the back of the note was indorsed “June 7, 1847, received the interest. June 8, 1848, received the interest.” The note was read to the jury. Pattee made no defence.

On Exceptions from the District Court, Cole, J., presiding. Trespass quare clausum, originally commenced before a justice of the peace. On facts agreed. Plea the general issue. , • It appeared that the defendants entered upon the grass land in possession of one Morse, under whom the plaintiff claims, and took and carried away the hay thereon. Morse had possession of the farm under a lease from Paul Adams, which lease, before the taking of the hay, had expired.

Exceptions from Nisi Prius, Howard, J., presiding. Replevin, for a pair of steers. The plaintiff set up title from one Russell S. Currier in April, 1849, and that he was to keep them until they were six years old and then to return them or pay fifty dollars.

Petition for a writ of certiorari. ' The original petition for the location of the road, signed by Daniel Parsons & als., represented “… Held: the town of Sumner appeared by their agent, the account for opening of the road was allowed, and at the close of the account, after the amount was added up, was the following:— “ allowed for settlement:— “ To two days attending Feb., adjourned term, proving account, §4 00 “ To three days settling account for labor, materials, &c., $6…

<p>Upon a party alleging fraud, is imposed the burden of proving it.</p> <p>The insolvency ef the vendor at the time of the sale of a chattel in an unfinished state, Ms treatment of the property as his- own in completing it after such sale, do not furnish conclusive evidence of a fraudulent sale; but those indicia of fraud may be explained so as to make the sale valid as against the creditors of the vendor.</p> <p>The sale and delivery of a chattel in an unfinished state, but which, by agreement of the parties, is left in the control of the vendor to fiMsh, is sufficient to vest the property, after its completion, in the vendee, as against the attacMng creditor of the vendor.</p> <p>Where an unfinished chattel, to be completed by the vendor, was transferred by a bill of sale absolute on its face, but containing the clause “ allowing-the vendee the right to take the same at will,” such clause will not authorize the vendee to repudiate the contract.</p>

<p>Upon a note, given under duress by imprisonment, no action can be maintained. Such duress must be an unlawful restraint of the person.</p> <p>It is no defence to a note, tbat it was given for the suppression of a prosecution, criminal merely in form, but involving no criminal offence.</p>

<p>De Homine Replegiando.</p> <p>The writ was returnable . to the late. District Court, and was as follows: —</p> <p>“We command you, that justly and without delay, you cause to be replevied John Gurney, who, (as it is said) is taken and detained in a place called Alfred, within our said county of York, by the duress of Thomas P. Tufts, of Saco, in the county of York, and is there unlawfully imprisoned and restrained of Ms.liberty, by the said Thomas P. Tufts; that he, the said John Gurney, may appear at our District Court, for the Western District, next to be holdenat Alfred, within and for our said county of York, upon the third Monday of October, A. D. 1851, then and there in our said Court, to demand right and justice against the said Tufts, for the duress and imprisonment aforesaid, and to prosecute his replevin as the law directs; provided that the said John Gurney shall, before his deliverance, give bond to the defendant, in such sum as you shall judge reasonable, and with two sufficient sureties, with condition to appear at said Court to prosecute his replevin against the defendant, and to have his body there, to be redelivered, if thereto ordered by the Court, and to pay all such damages and costs as may be awarded against him; and if this plaintiff is delivered by you at a day before the sitting of said Court, you are to summon the defendant to appear at said Court.”</p> <p>Tufts, the defendant, was a constable of the town of Saco, and he avowed the taking and detaining of the plaintiff, and justified under a warrant to him directed by the Judge of the Municipal Court of that town, which warrant he was permitted to read, though objected to by the defendant.</p> <p>It recited that the plaintiff had been convicted upon the complaint on oath of C. B., C. H. and S. S., all of Saco, and voters in that town, that the plaintiff had and kept spirituous and intoxicating liquors, intended for sale, deposited in the shop in said town, occupied by him, (he not having been appointed by the selectmen to sell such articles,) whereby said liquors had been forfeited to be destroyed, &c. The warrant further recited, that upon that complaint, a search warrant had been issued and committed to said Tufts for service, and that Tufts had returned the same with an indorsement thereon, certifying that he had seized certain spirituous and intoxicating liquors, and summoned John Gurney [this plaintiff,] the owner or keeper thereof, by reading to him the warrant. The warrant further recited, that said Gurney did not appear and show cause why said liquors should not be destroyed, and why he should not be adjudged to pay a fine and costs; and that he did not appear at all, or claim said liquorsand that by the consideration of said Court, he was sentenced to pay a fine to the use of said Saco, of twenty dollars, and costs of proseóutíon, taxed at four dollars and ten cents, and stand committed until the same be paid; and that said liquors were declared forfeited to be destroyed, the same having been found and seized in said shop, and that said John Gurney failed to pay said fine and costs. The warrant, therefore, commanded this defendant to convey said John Gurney to the jail, and him there deliver to the keeper thereof, and to destroy said' liquors. And it also commanded the keeper of the jail, to receive said Gurney into his custody in said jail, and him there to keep until he perform said sentence, or be otherwise discharged by due course of law.</p> <p>Upon that warrant, the defendant made return as follows:</p> <p>“York, ss. July 14, 1851. By virtue of this precept I have conveyed the within named John Gurney to the town of Alfred, for the purpose within named, where he was taken from my possession by Israel Chadbourne, sheriff of the county of York, on a writ of replevin, for replevying the person. Thomas P. Tufts, constable of the town of Saco.”</p> <p>The case was then taken from the jury and submitted to the Court, upon the stipulation, that if the action was maintainable, judgment should be rendered for the plaintiff; otherwise, that a nonsuit should be entered.</p>

On Report from Nisi Prius, Wells, J., presiding. Assumpsit upon a policy of insurance against fire. After the evidence had all been presented, the case was submitted to the Court, with power to draw inferences of fact, and to enter judgment of nonsuit or default, as the principles of law may require. By the consideration of the Court, the evidence established the following facts:— The defendants are a corporation established by a statute of the State of New Hampshire.

On Report ’from Nisi Prius, Wells, J., presiding. Indictment under the Act of 1851, “for the suppression of drinking houses and tippling shops.” In one of its counts the indictment charged, that the defendant “ was a common seller of spirituous and intoxicating liquor, not being duly appointed therefor pursuant to the provisions of said Act.” In another count it charged, that the defendant, at Saco, was such seller, “not being duly appointed as the agent of such town of Saco…

On Report from Nisi Prius, Wells, J., presiding. The fourth section of statute of 1851, provides that, “if any person shall sell any spirituous or intoxicating liquor, in violation of this Act,’.’ he shall forfeit on the first conviction ten dollars and costs.

On Report from Nisi Prius, Wells, J., presiding. Debt, on a bond given by defendants to the inhabitants of the town off Saco, for §200, conditioned that the principal obligor should not violate any of the provisions of c. 211 of Acts of 1851, during the pendency of an appeal by him made, from the sentence of the Municipal Court of said Saco, on a conviction before that Court for selling spirituous liquors contrary to said Act.

Writ op Error, to reverse a judgment of tbe Supreme Judicial Court, rendered against tbe plaintiff at tbe September term, 1852. The error assigned was, in sentencing tbe plaintiff to pay a fine of §20 and tbe costs of prosecution. Complaint was made against tbe plaintiff in error of a violation of c. 211, § 4, of laws of 1851, which contained four counts, charging a sale of different kinds of liquors in each count.

On Report from Nisi Prius, Shepley, O. J., presiding. Trover, for a cbaise. The writ alleged that the defendants were partners, and as partners they converted the chaise to their own use. The defendants severally pleaded the general issue.

<p>On Exceptions from Nisi Prius, Wells, .J., presiding.</p> <p>Assumpsit on a promissory note purporting to bo signed by the defendants. Blaisdell, one of the defendants, was defaulted at a prior term of the Court, but at the time of the trial a motion was made to have his default taken off, which was denied. Gilpatrick, the other defendant, then pleaded the general issue, and upon the trial offered Blaisdell, the defaulted defendant, as a witness; 1st, to prove usury in the note declared on; 2d, as a witness generally.</p> <p>The presiding Judge ruled that he was incompetent, and a verdict was returned for the plaintiff.</p> <p>1. Blaisdell, having been defaulted, was a competent witness generally, for Gilpatrick, his co-defendant.</p> <p>The rule which would exclude the testimony of a defaulted defendant in behalf of his co-defendants, has been greatly relaxed, until it is believed to bo now settled that he is competent in all cases where he is not in some way interested, or where his testimony cannot directly make for himself. Greenl. on Ev. § § 356 and 357.</p> <p>The reason for excluding such a witness, in Gilmore v. Bowden i¡' al., 3 Eairf. 412, “that the defaulted defendant was a party to the record,” would seem to be just as forcible in an action of tort, where the rule is uniformly the other way.</p> <p>The reason given by the Court in Bull v. Strong ip al., 8 Met. 8, is more satisfactory and conclusive.</p> <p>Under a Massachusetts statute, the Court of that State has allowed a witness under these circumstances to testify. Bradlee v. Neal, 16 Pick. 501; Chaffee v. Jones, 19 Pick. 260.</p> <p>Our own statutes, c. 115, § 11, would seem to authorize the same ruling. The decision of Gilmore v. Bowden if al., was made before the passing of this statute.</p> <p>2. Blaisdell was at least competent to testify to usury in the note declared on, between himself and the plaintiff.</p> <p>The note was joint and several. Either of these debtors were entitled to the benefit of any payments made thereon above the legal rate of interest. R. S., c. 69, § § 2 and 3; c. 192 of Laws of 1846.</p> <p>The avoidance of excessive interest by the provisions of this statute is not a personal privilege, so that one of several defendants, who may know of large sums of usury paid to the plaintiff, may submit to a default and deprive his co-defendants of the benefit of his knowledge. The language of the statute is explicit, —- “ if the debtor, or any one of them, (no matter what his position, whether defaulted or not,) when there are two or more, shall come into Court, and shall actually swear, &c., all such excess above legal interest shall be void, and the debtor shall be discharged from the payment of it, unless,” &c.</p> <p>This construction is favored by the provisions of the 7th §, (now repealed.)</p> <p>“ The party, so reserving and taking more than legal interest, shall recover no costs, but shall pay costs to the defendant; provided the damages shall be reduced by the oath of any one of the defendants, where there are more than one, by reason of such usurious interest.”</p> <p>In Knights v. Putnam 4" «ti., 3 Pick-. 171, it was held that all the debtors must swear to the usury under the statute of Massachusetts, at that time, which provided that “ if the debtor or debtors,” &c.</p> <p>But our statute expressly makes the oath of one sufficient.</p> <p>In this case the Court refused to take off the default of Blaisdell, and refused to allow him to testify to usury in the note declared on, because he had been defaulted, thus depriving his co-defendant, (and perhaps with the collusion of the plaintiff,) of the benefits of the statute concerning usury. The language of the statute seems too explicit to allow such a result.</p> <p>1. The refusal of the presiding Judge to take off the default of one of the defendants, was, under the circumstances, a mere matter of discretion, and not the proper subject of exception. 5 Pick. 206; Clapp -v. Batch, 3 Maine, 216; Leighton v. Mason, 14 Maine, 208.</p> <p>2. The refusal to admit Blaisdell to prove usury in the note between plaintiff and himself was correct, for to prove usury under our statute law, is a mere personal privilege, to be exercised by the debtor and him alone. It must be for his own benefit and not for any one else. Blaisdell had been defaulted, and that default had been acquiesced in for a long time, with counsel learned in the law managing the defence. And Blaisdell, by such default, admitted in the strongest manner that he had no defence to make; that he did not wish to take advantage of the. statute of usury. It is only by pleading the general issue that a party may avail himself of such a defence under the Act. Blaisdell could not by any possibility avail himself of this Act, for he had made no such plea, and if he could not set up this plea for himself, he could not be a competent witness to prove it for the other defendant, unless otherwise a competent witness in the case generally.,</p> <p>It appears by the exceptions that the defendant G-ilpatrick is not interested in the question of usury. He raises the point between the plaintiff and Blaisdell alone. There is no pretence that he, Gilpatrick, ever paid any usury, and he therefore has no right to make a defence upon that ground. It is only he who suffers the loss that can make any claims for usury. Green v. Kemp, 13 Mass. 515, and'9 Mass. 45; Webb v. Wilshire, 19 Maine, 406; Little v. White, 8 N. H. 216.</p> <p>3. Blaisdell was not a competent witness, generally. The exceptions on this branch of the case do not contain enough to enable the Court to judge whether he should have been admitted or not. They do not state what was offered or proposed to be proved by him. This should have been stated so that the Court could know whether the evidence was material. The exceptions must show that the party has cause of complaint. Comstock v. Smith, 23 Maine, 202; Bryant v. Couillard, 32 Maine, 520; Emery v. Vinall, 26 Maine, 295.</p> <p>But he was a party to the record, and that is a sufficient reason for his rejection. There are some exceptions to this rule, but this case comes not within either of them, Gilmore v. Bowden Sf al., 12 Maine, 412; Kennedy v, Niles, 14 Maine, 54; Fox y. Whitney, 16 Mass. 118.</p> <p>Besides, the proposed witness was interested in the result, and was therefore rightfully excluded. We could not take judgment against him alone, and if his testimony should have defeated our claim against Gilpatrick, then it would operate as a defence to the whole action, and the jury would have been obliged to render a verdict for the defence generally. The plaintiff might have discharged him, but that was not done, and so both are parties to the record and the plaintiff was bound to obtain judgment against both or neither, and therefore it is clear that Blaisdell was interested to make a defence for Gilpatrick and thereby for himself and get his costs.</p> <p>The case of Tuttle v. Cooper Sp als. 10' Pick. 281, strongly resembles the case at bar, and comprises a full and complete investigation and examination of the principles and authorities bearing upon the point in issue, and to which the Court is referred as a part of my argument.</p>

On Report ¿rom Nisi Prius, Shepley, O. J., presiding. Assumpsit. The writ contained two counts, one on the contract referred to, and one for money had and received. The defendant, as an attorney at law, undertook to collect a debt for the plaintiff, upon which judgment was obtained and execution. Upon the execution, the judgment debtor was arrested and gave a relief bond.

On Exceptions from Nisi Prius, Wells, J. presiding. Assumpsit, originally brought before a justice of the peace. The plaintiff’s writ was dated Jan. 27,1853, service made thereon on the defendant, and the Laconia Company summoned as his trustee on Jan. 31, 1853. The defendant was defaulted.

On Exceptions from Nisi Prius, Howard, J., presiding. Assumpsit, on a balance of account for hard and soft wood joists. The parties lived in the town of Shapleigh. Evidence was introduced tending to show that the plaintiff contracted with the defendant for 3 M. feet hard wood, and 5 M. feet soft wood .joists, to be delivered on the line of the York and Cumberland rail road in the town of Sanford. They were delivered according to the agreement.

<p>It seems, that the provision in § 20, c. 133, B. S., in regard to depositions taken on written interrogatories, has reference to such as may he taken before a magistrate on notice, as well as to those taken under a commission.</p> <p>When a deposition is taken on written interrogatories, and incompetent testimony is drawn out in. response thereto, such testimony may be excluded by the Court, although no objection was interposed at the time of taking.</p> <p>While it is true that declarations of the defendant in no wise relating to the issue, are not admissible in evidence, yet if such declarations are so intermingled by him with matters pertinent to the issue, that they cannot be • separated without modifying the pertinent matter or rendering its meanign obscure; then the whole of his declarations become admissible.</p> <p>To impeach the testimony of a witness, who has testified to a conversation with the defendant involving him in a trespass, it is incompetent to introduce his declarations that he believed the defendant innocent.</p> <p>Entries in books of a private character, made by different persons, and some of them unknown, are not admissible as original evidence.</p>

On Exceptions from Nisi Prius, Howard, J., presiding. A motion was also filed to set aside the verdict, as being against law and the evidence in the cause. Case, against the defendant as sheriff, for the official neglect and misfeasance of one.D- L. Littlefield, his deputy. The writ contained three counts. The first charged neglect in omitting to attach certain personal property owned by one Samuel Thompson, jr., specifically described.

On Exceptions from Nisi Prius, Wells, J., presiding. Complaint was made to a magistrate by three persons competent to be witnesses in civil suits, on the 12th day of Dec., 1853, that they “had reason to believe that spirituous and intoxicating liquors were, and still are kept and deposited by Charles Staples, of Biddeford, in said county, in the dwellinghouse of said Charles Staples, situated on the south-easterly side of the road leading from Biddeford village to Kennebunk,…

On Facts agreed. Scire Facias, against defendant, as trustee of one Janies Warren. At the return term of the writ in the original suit, the defendant made a disclosure, was charged as trustee, and judgment obtained in that suit for $111,91, damages, and $89,83, costs.

<p>Where a written agreement is entered into respecting a particular transaction, the parties to it are regarded as intending to secure to each other their entire rights.</p> <p>Thus, where a seaman agreed in writing with the owners and skipper of a fishing vessel, that for his services for the season, he should have his share of one half the fish, he is not entitled to any portion of the bounty earned by the vessel.</p> <p>The statute of the United States allowing fishermen a share of the bounty has no operation, when the agreement between them and the owners stipulates the compensation for their services, without any reference' to it.</p>

<p>Motion to set aside a verdict as against law and evidence.</p> <p>Trespass quare clausum.</p> <p>The defendants severally pleaded the general issue, and Roberts filed a brief statement of soil and freehold in the land in dispute. The other defendants justified as his servants.</p> <p>After the pleadings of the defendants were read, the plaintiff read the following to the Court. —</p> <p>“ Samuel M. Blaisdell v. Ezekiel Roberts &f als.</p> <p>“ Counter brief statement of plaintiff. —</p> <p>“ The plaintiff says, that the trespasses described in his writ were committed by the defendants on^the close described in his said writ; and that title to the soil and freehold thereof, was not at that time in the said Ezekiel Roberts, but was in one Samuel Blaisdell, under whom the plaintiff was in possession as servant and tenant.”</p> <p>The substance of the evidence in the case will be found in the opinion of the Court.</p> <p>The facts in relation to the counter brief statements, were stated in the report of the evidence, for the decision of the full Court, whether it is a part of the case.</p> <p>It appeared by the report, that the counsel read the counter brief statement to the Court, but it was not signed. On its being read, the counsel for the defendants remarked, that it did not affirm his declaration, and the plaintiff said it was not necessary, lie presumed, in which the presiding Judge concurred.</p> <p>It was then put aside, and was not handed to the jury, and the counsel did not understand that it was in the case.</p> <p>The counsel for defendants had no knowledge that it was withdrawn, but regarded it and treated it as a part of the case. No motion was made -for leave to withdraw it during the trial.</p> <p>A verdict was returned for the defendants.</p> <p>1. Possession is sufficient to maintain this action, against one who cannot show a better title. Moore v. Moore, 21 Maine, 350.</p> <p>Actual possession is prima facie evidence of a legal seizin, uncontrollable by a stranger. Newhall v. Wheeler, 7 Mass. 189; Graham v. Peat, 1 East, 245; Haskell v. Birbeck, 3 Bur., 1563; Cary v. Holt, 2 Strange, 1238; Lambert v. iStroother, Wilde’s R., 221.</p> <p>2. The defendant, in this form of action, cannot avail himself of title in a third person’, without showing the title, and command or permission of that person. Merrill v. Burbank, 23 Maine, 538; Chambers v. Donaldson óf ais., 11 East, 74. j</p>

On Exceptions from Nisi Prim, Howard, J., presiding. Indictment for the common selling of spirituous and intoxicating liquors, in the town of Saco, between October 1, 1853, and April 1, 1854, under the Act of June 2d, -1851. After the evidence for the State was introduced, the defendant requested the Judge to give the following instructions : — 1.

On Exceptions from Nisi Prius, Howard, J., presiding. Indictment. The defendant was accused of breaking and entering a store and stealing certain goods therefrom in the night time. Evidence was introduced, tending to show that certain goods produced in a trunk in Court were a portion of those taken from the store; that they were at some time in the possession of the defendant, and that the trunk was his.

<p>On Exceptions from Nisi Prius, Howard, J., presiding.</p> <p>Case.</p> <p>The plaintiff alleged the loss of his horse by means of a hole in the traveled part of a highway, in Lyman, on Dec, 18, 1851.</p> <p>The witness called by plaintiff would not testify that the injury was on the eighteenth, but about that time.</p> <p>The defect in the road appeared to be a small hole, occasioned by the frost heaving up the earth and leaving a stone below the surface. In the fall the road was in good repair.</p> <p>The defendants offered evidence, that at the time of the accident, and before and afterwards, there were holes in the roads in Lyman, similar to that where the accident happened, occasioned by the freezing and thawing of the ground only, and extending over a considerable portion of the roads in the town, which, being objected to, was excluded by the Judge.</p> <p>The jury were instructed, th'at the day alleged was not material, and that it was sufficient if the plaintiff proved the facts to have taken place in the month of December.</p> <p>Defendants' counsel requested the instruction, that if the jury were satisfied, that the road was .in good repair, and safe and convenient for travelers and their horses, teams and carriages, at the time when the ground was first frozen during that winter, and that it so remained at, and until after the time of the alleged injury to the plaintiff’s horse, unless rendered otherwise by the effect of the freezing or thawing of the ground, or by freezing and thawing both, then the town is not liable.</p> <p>The Judge declined to give such instructions.</p> <p>A verdict was rendered for plaintiff, and defendant's excepted to the exclusion of the testimony offered, to the instruction given, and the refusal to give the one requested.</p>

On Motion to set aside the verdict, on report of the evidence. Assumpsit on an account annexed. The defendants were sued as partners. Pinkham was defaulted. The other denied the partnership. During the progress of the trial objections were made by plaintiff to certain rulings of the Judge in excluding and receiving testimony, which were noted. The verdict was for defendant.

On Report from Nisi Prius, Howard, J., presiding. Assumpsit. The plaintiffs, as trustees of the Methodist Episcopal Church and Society in Biddeford, procured a policy of insurance on the “ Alfred” street meetinghouse, of the defendants, in the sum of two thousand dollars.

On Exceptions, Wells, J., presiding. Petition for Partition.

<p>A construction, by which, a freehold estate shall be in abeyance, is to be avoided, if possible.</p> <p>In the construction of a will, the intention of the testator is to govern, when not at variance from recognized rules of law.</p> <p>This intention is to be ascertained by comparing all parts of the will together.</p> <p>Upon such a comparison, that construction is to be given, which will best comport with the general objects, and least conflict with particular provisions of the will.</p> <p>Although a will may not contain any express words of grant to executors, or any technical words of limitation to them, yet, by implication, a fee will vest in them, if upon a view of the whole will, such a fee be indispensable for effectuating the objects of the testator.</p> <p>"When, a will creates trusts, which require for their effectual execution an estate in fee, such estate will be implied.</p> <p>A will prohibited for twenty years the vesting of the real estate in the heirs at law, who were the minor grand-children of the testatrix, and gave to the executors the entire care and management of it during that period; — required that, from the income, the grand-children should be supported and 'educated, and the surplus income invested by the executors; — that during the twenty years the estate should remain undivided, and that immediately afterward it should vest in the grand-children; —prohibited any sale of it by the executors, but authorized them to lease it and to exchange a specified part of it for other land, and to execute deeds therefor; — required that, upon the marriage of the female grand-children, the executors should protect the portion of each one of them from the control of their respective husbands;-— and provided that, if within the twenty years tire grand- children ¡should all die without issue, the estate should be appropriated for relieving the poor of the vicinity, in such manner as the executors should prescribe: — Held that, by construction, the executors took a fee simple in trust, defeasible •at the end of the twenty years, or when the trusts created by the will should have beca accomplished.</p> <p>'One expressly appointed executor, and also by construction of the will constituted trustee, and having given bond as executor, is considered to have declined the office of trustee, unless he have given bond in that capacity ■also.</p> <p>Zn such case the statute provides that a trustee may be appointed by the Judge of Probate.</p>

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Assumpsit on account annexed to tbe writ for $14,33; the ad damnum being laid at $20,00. Upon that writ a schooner was attached, the property of the defendant, which was receipted for to the officer by the firm composed of Charles E. Sawyer and Levi Sawyer. The receipt was signed in the co-partnership name, and wast accepted by the plaintiff, as satisfactory security.

Exceptions from Nisi Prius, Shepley, C. J., presiding. On Trustee’s disclosure. The case being called in its order, Fox, for the plaintiff, suggested that it was against a firm which consisted of four persons, of whom several were dormant partners; while the trustee has testified to his belief that, when the dealings were bad, concerning which he is called to disclose, the firm consisted of two persons only.

Action of Tort against the sheriff, founded upon the alleged unlawful act of his deputy in attaching upon a writ against a third person certain saw-logs, cut upon the forest land owned by the plaintiffs as mortgagees. The writ contained a count in trover and three counts in trespass. The general issue was pleaded and joined.

<p>A sheriff is not liable upon a contrast made by bis deputy in bis private ancft unofficial capacity, though such contract may have arisen out of some official act performed by the deputy.</p> <p>Bor the expenses of defending a suit brought against the sheriff upon such w contract, he has no remedy upon the deputy or his sureties, their bond containing no indemnity against such suits.</p> <p>To suits brought against the sheriff for official acts of his deputy, it is proper that the sheriff should take care that no judgment he wrongfully obtained against him. Bor the expenses of so- doing, if judiciously incurred in good faith, he has remedy on the deputy’s bond.</p> <p>Bor such expenses, incurred before the suit upon the deputy’s bond, the-sheriff may recover, though in fact not paid by him till after bringing the-suit.</p> <p>Judgment in a suit, wherein a set-off account had been filed, is conclusive upon that account, unless some of its items had been previously withdrawn.</p> <p>But if, in adjusting the amount of the judgment, the parties have, in writing, stated what are the elements which make up the amount, any item of the set-off claim which was excluded from, such adjustment, may become the-basis of a new suit.</p>

On Facts Agree®. Trespass) for an assault and battery committed on the high seas, Dec. 11, 1849, the writ being dated Sept. 25, 1852. The defendant relied upon the statute of limitations, and pleaded that the cause of action, if any, did not accrue within two years nest before the commencement of the suit.

On Report from Nisi Prius, Wells, J., presiding. Bill in Equity to redeem real estate mortgaged. The plaintiff had drawn up and signed a paper, directed to the defendant, which, as to its form, was a sufficient demand upon the defendant to exhibit to the plaintiff the amount due upon the mortgage. The paper also stated, that if more convenient to the defendant, he might leave the exhibit with Willis & Fessenden, attorneys.

On Report from Nisi Prius, Shepley, C. J., presiding. Trespass, for breaking, entering, and cutting trees upon the plaintiff’s close, described as follows; — beginning at, &c., thence running southwest 169 rods; thence northwest to land owned by David Gross; thence northeast to a road; thence southeast to the first bound.

On Exceptions from the District Court, Emery, J. The question is upon the liability of Jones & Hammond to be charged as trustees. The case was heard upon their disclosure. They disclosed, that for various indebtments of the principal defendants to them, and for various liabilities entered into by them for the principal defendants, they, the principal defendants, made to the trustees three mortgages of personal property which were duly recorded.

On Report from Nisi Prius, Howard, J., presiding. Assumpsit, for money had and received. Plea general issue, with a brief statement of the statute of limitations and joinder. The writ was dated May 15, 1851.

On Exceptions ¡from Nisi Prius, Howard, J. presiding. Scire Eacias against the defendants, as trustees of one I. G-. Myers. A disclosure was made in this suit, by the treasurer of the defendants, that at the ■ time of the service of the writs. in the original suits, the company had no goods, effects or credits of the principal in their hands or possession.

<p>Tu a suit for money paid for defendant as his surety on a note, signed at the request of one of the members of his family, which note plaintiff was compelled to pay; the declarations of the defendant of his dissent to what plaintiff had done, uncommunicated to the plaintiff or to the payee of the note, are not admissible in evidence.</p> <p>If the maker assents to the alteration of his note by the substitution of another surety, and the note is paid by such surety, he is liable to reimburse him for the mbney so paid.</p> <p>And such assent may be presumed from his subsequent acts and conduct in relation to it, though he was not present when the substitution was made.</p> <p>■Whether the defendant would not be liable, after receiving the benefit of plaintiff’s name and being relieved of his own obligations, even without his assent, quere.</p> <p>It is from the equitable obligation between the principal and surety that the legal liability arises that the surety shall be saved harmless, and a promise is implied from the relations between them, where none in fact existed.</p>

<p>On Report from Nisi Prius, Howard, J., presiding.</p> <p>Replevin, for a sloop.</p> <p>The plaintiff was a constable, and haring a writ against one Eoss, had attached a sloop of which he owned one-fourth. Two of the part owners, with others, gave him an obligation to pay §100, or re-deliver the sloop in thirty days after the judgment in that suit, and the sloop was given up to them. While the owners of the three-quarters, and the receiptors were in possession of the sloop, and finishing the work undertaken at the time of plaintiff’s attachment, the defendant attached the sloop at the suit of another creditor of Foss. Before he made this attachment, he was notified of the former attachment, by the person in charge, and that he with others had receipted for her.' Both suits on which the sloop was attached, are pending in Court.</p> <p>The case was withdrawn from the jury and submitted to the Ml Court to enter a nonsuit or default, as the law may require.</p> <p>We maintain this proposition, that where property is attached, and delivered by the officer up to the part owners; who have given a receipt in the usual form, that the officer’s lien thereon is lost so that he can maintain no action of replevin for the property, on its being subsequently attached by an officer.</p> <p>The Supreme Judicial Court in Massachusetts, (Went-worth v. Leonard, 4 Cush. 414,) doubted whether the relation of receiptors to the offieei’, was as his bailees and agents, or as an original contractor with him, under the receipt. The Court in this State, (Penobscot Boom Corporation v. Wilkins, 21 Maine, 345,) have decided that they stand as original contractors on their promise, and are permitted to defeat a suit by the officer, by showing that the .property receipted for, did not belong to the defendant in the original suit; and. this decision is sustained by the reason of the whole thing; and yet it would be anomalous, if the receiptor were simply the keeper of the officer.</p> <p>It is the established doctrine in Massachusetts, that where a receipt has been taken, and the property has gone back into the hands of the owner, the officer’s lien is lost. Denny v. Willard, 11 Pick. 519; Robinson v. Mansfield, 13 Pick. 139; and in this State, Weston v. Dorr, 25 Maine, 116.</p> <p>A lien is simply a right to retain possession, and of course where there is no possession, there can be no lien. Smith’s Mercantile Law, p. 565.</p> <p>contended, that the attachment made by him was valid at the time defendant attached the same property, and cited Merrill v. Curtis, 18 Maine, 216 ; Bond v. Paddleford, 13 Mass. 394; Baker v.. Fuller, 21 Pick. 318.</p>

<p>On Exceptions from Nisi Prius, Shbplby, C. J., presiding.</p> <p>Complaint for violating an ordinance of the city of Portland, which provided, that “if any person shall mutilate or destroy any ornamental tree planted, or that may be hereafter planted in any of the streets, &o., he shall forfeit,” &c.</p> <p>The complaint alleged, that the defendant, at, on, &c., “ did mutilate and destroy a certain ornamental tree, then and there planted and being and growing in the street,” &c.</p> <p>To the complaint the defendant demurred generally.</p> <p>The Judge overruled the demurrer, and adjudged the complaint to be good, and the defendant excepted.</p>

On Report from Nisi Prius, Howard, J., presiding. Petition for Partition. The Court were authorized to determine the facts and the law arising thereon. The facts found were, that three of the petitioners were illegitimate children of Moses Hunt, the other was legitimate. The three respondents were his lawful children by his first wife.

On Pacts agreed. Assumpsit. The writ contained the money counts, a count on an account annexed and one count upon a contract signed by Hobart Clark, the defendant’s agent, lawfully authorized as alleged in the writ. All the claims of plaintiffs, in the several counts in their writ, originated under the contract declared on. That contract was signed and sealed by the plaintiffs and by Hobart Clark, an agent of the defendants.

<p>Exceptions from Nisi Prius, Howard, J., presiding.</p> <p>Assumpsit, for, goods delivered to defendant on three orders, by him drawn on the plaintiffs, of the following tenor:</p> <p>“Portland, July 30,1851.</p> <p>“ Please let Mr. B. Rand have hardware to an amount not exceeding one hundred and fifty dollars, and I will settle with you for the same.”</p> <p>“Nov. 29, 1851.</p> <p>“Please let B. Rand have goods to the amount of fifty dollars and charge the same on account.”</p> <p>Another dated Peb. 17, 1852, similar to the "preceding.</p> <p>The suit was commenced on Peb. 28, 1852. Plaintiffs proved the delivery of items of hardware after the date of the orders to their amount.</p> <p>The defendant showed by Rand that he, witness, was sent by bim to tbe plaintiffs to make tbe trade for hardware for bis bouse wbicb be was building. That be told one of tbe plaintiffs be should want about §200 worth, and wanted the account to run a year. He said, be bad no objection if Wood-bury, bis partner, would consent. Tbe witness saw Wood-bury soon after and be said be would let tbe defendant have tbe goods on one year.</p> <p>Tbe orders were made at tbe request of tbe witness, and tbe first one was drawn soon after tbe conversation with Woodbury. The witness made known to defendant that tbe goods were to be on a year’s credit, when tbe order was given.</p> <p>All tbe testimony of Rand was objected to, especially all testimony tending to show any different contract than that contained in tbe written orders, or any different term of credit than was provided for in tbe written orders, but tbe presiding Judge admitted tbe evidence.</p> <p>Tbe jury returned a verdict for defendant. To tbe instructions exceptions were taken, as well as to tbe admission of defendant’s testimony, but tbe point, upon which tbe opinion of tbe Court was based, renders it unnecessary to give tbe instructions.</p> <p>That tbe testimony of Rand was inadmissible and should have been excluded, they cited Goss v. Lord Nugent, 5 B. & Ad. 58; Phil, on Ev., Cowen & Hill’s notes, part 2d, Note 295, page 358, 3d Am. Ed., where tbe cases are collected. Barker v. Prentiss, 6 Mass. 434; McCullough v. Girard, 4 Wash. C. C. R. 292; Mead v. Steger, 5 Porter, 505; Barringer v. Sneed, 3 Stew. 201; Simpson v. Henderson, 1 Moody & Mai. 300; Thompson v. Ketchum, 8 Johns. 189; Hunt v. Adams, 1 Mass. 518; Pattison v. Hull, 9 Cowen, 141.</p>

On Report from Nisi Prius, Howard, J., presiding. Trespass de bonis asportatis for a quantity of hay.

On Facts agreed. Assumpsit against defendant as administrator of the estate of Charles Libby.

On Exceptions, Howard, J., presiding. Indictment, against the defendant, “ for, that on, &c., at, -&g., near to a certain public street and common highway there, and near the dwellinghouses of divers citizens of said State, he did, and still doth keep twelve hogs and pigs in a ■certain pen and yard, there near to the said public street and common highway, &e., and unlawfully and injuriously, said hogs and pigs did feed, and yet doth feed with offal, •&c., and did unlawfully…

<p>On Exceptions from Nisi Prius, Howard, J., presiding.</p> <p>Case in the nature of waste. The defendant justifies his acts upon the estate by a license and permit from the tenant for life.</p> <p>It appeared, that Ephraim Hunt at Ms decease was the owner of the premises described in the writ, and that the persons alleged to . be his co-tenants were Ms children and the children of Jeremiah Hunt, a deceased son of said Ephraim, and that he had no other children.</p> <p>Three of the children of Ephraim had conveyed their interest to their brother, one of the plaintiffs, and their deeds were produced.</p> <p>The will of Ephraim Hunt had been duly proved, - by which he disposed of his estate thus: —</p> <p>1. I give, devise and bequeath to my beloved wife, Martha Hunt, my homestead estate, being all my real estate in the town of Brunswick, together with all my household furniture, to have and to hold, occupy and improve the same during her natural life, and at her decease to be disposed of as hereafter directed.</p> <p>2. After the decease of my dear wife, my will is, that my executor hereinafter named, cause an equal division to be made among all my children and the heirs of such as may then be deceased, of all my property, both real and personal, &e.</p> <p>Martha Hunt is still alive. Evidence was introduced tending to prove the acts alleged in the writ.</p> <p>After all the evidence was produced by plaintiffs, the defendant moved for a nonsuit on the ground that they had! no such interest in the said estate of Ephraim Hunt under and by virtue of his will,, as. would enable them to- maim tain this action.</p> <p>The presiding Judge ordered a nonsuit, and the plaintiff excepted.</p> <p>cited the1 following authorities. — 4 Kent, 214, 7th Ed-. Moore v. Lyon,‘lb Wend. 119; Dingley v. Dingley, 5 Mass. 535 p Bates v. Webb,-8 Mass. 458; Nash ux. v. Cutler &f al.r 16 Pick. 491; Ballard v. Ballard, 18 Pick. 43; Hall v. Tufts, 18 Pick. 455; Child v. Russell,. 11 Metcalf, 16; Browne v. Laiorence, 3 Cush. 390; Wright v. Shaw, 5 Cush. 60.</p> <p>1. No person can maintain an action of waste, or in the nature of waste, except he who has the next immediate estate of inheritance in the property wasted, and where the fee is in abeyance, it may follow, that the tenant for life is dispunishable for waste. 1 Cruise, Tit. 1, § § 56 and 5T, pp. 18 and 19; 1 Cruise, Tit. 3, § 40, p. 10; R. S., c. 129, § § 1 and 4.</p> <p>2. The nonsuit was rightly ordered, because the plaintiffs here have no such interest in the estate as entitles them to maintain an action. Their interest is purely contingent. Olney v. Hull, 21 Pick. 311.</p>

<p>A person who instructs a town school without the statute certificate from the Superintending School Committee, cannot recover his wages against the .town.</p> <p>And if for the year in which such school is kept, no Superintending School Committe has been chosen, such omission of the town will not aid the plaintiff to recover.</p> <p>Nor can 'such teacher collect his wages from the agent who employed him, although the district itself, might not in all respects, have been originally legally established, or such agent might not have been sworn.</p>

<p>On Pacts agreed.</p> <p>Assumpsit to recover tbe taxes assessed in the'year 1850, upon a fund held by defendants. [All objections to the. iorm of the action were waived.]</p> <p>The defendants are the trustees of the ministerial fund in Baldwin, under the provisions of an Act of Massachusetts;, passed Eeb. 15, 1816, making them a'body politic and corporate forever.</p> <p>The lands referred to in said Act, were originally reserved in the grant of the township, afterwards Baldwin, by the Commonwealth of Massachusetts, for the support of the gospel ministry in that town. Under the provisions of the Act of 1816, they were sold in the year 1818, and the proceeds were, and have continued! to be funded ever since in the hands of the trustees! The income is to be appropriated to the support of the gospel ministry in that town.</p> <p>In 1826, the town of Sebago was formed from territory originally a part of Baldwin. By the Act incorporating Sebago, it was provided, that the Act should not be construed to affect a division of the Congregational parish in Baldwin, or the ministerial fund of said parish, but the same shall be and remain as if this Act had hot passed.</p> <p>Since that time the inhabitants of said towns have continued, as formerly, to act in parish meetings, as one and the same parish, and the income of the fund has been appro>priated, by vote of the trustees, according to the votes of the inhabitants of the two towns, in parish meeting assembled.</p> <p>The board of trustees- has always been constituted, since the division of the town of Baldwin, of individuals, part of whom resided in Baldwin, and part in Sebago. The treasurer, in 1850, resided in Baldwin.</p> <p>It was agreed, that if said fund was legally liable to assessment in said town of Baldwin, the defendants should be defaulted otherwise the plaintiffs should become nonsuit..</p> <p>1. This fund does not come within the provision of c„ 159, of Acts of 1845, § 2. It is not the property of the trustees. They hold for a purpose in which they have' no interest, and cannot be- assessed for it as of their own estate.</p> <p>It was not the property of any inhabitant, or number' of inhabitants. It was controlled by the first parish in Baldwin. Richardson v. Brown, 6 Greenl. 355.</p> <p>But they had no property in the fund. It was not theirs.</p> <p>2. To render personal property taxable, there must be a person to be taxed. The language of § 2, sustains this position. Where there is no person to whom such property is taxable, it cannot be liable.</p> <p>The objection is not obviated by § 9 of the same Act. The trustees are not owners and they reside in different towns.</p> <p>3. It cannot be assessed to the treasurer of the first parish in Baldwin, for the property is not held by any religious society as a ministerial fund. It is .held by trustees who are bound to appropriate it in .a certain specified mode. The treasurer of the trustees in not ex ■qffi do the treasurer of .a religious society. Hunt v. Parley, 34 Maine, 29. It results from these positions that the property is not liable to assessment, because there is no legal mode in which such assessment can be made or .enforced. An .assessment of the fund is merely nugatory.</p>

On Exceptions from Nisi Prius, Howard, J., presiding. Trover, to recover the value of a barn. The plaintiffs built a barn on land in possession of Ephraim Walker, which was mortgaged. Under this contract as found by the jury upon the evidence, Ephraim had the election, either to keep the barn as his, or if he chose not to help one of the plaintiffs to build a barn on his own land when wanted, then to let- them take this one off the lot. He used the barn a number of years.

<p>Construction, of a deed.</p>

<p>Where no objections are made to the legality of the records of a proprietary, it is a presumption of law, that they have been made conformably to the requirements of the statutes in force at the time of the transactions therein recorded. 0</p> <p>And no objections can be made against the admissibility in evidence of such records, by one claiming title from grantors, who were members of such proprietary, during the time the records were made.</p> <p>A wharf, called Deering’s wharf, was formerly built in P., one portion of it was owned by N. D. & J. H. I. and others, and the other portion by P. & J., on which the owners erected stores. The owners, and others associated with them, proposed to build a wharf to the channel, and divide it into shares, and widen the Deering wharj, and that the owners of the Deering wharf should keep the new part open, and that width to be continued to the end of said wharf for a passage way forever. The associates purchased the flats on which to build, and for a dock, to be held by them as tenants in tcommon. The owners of Deering wharf “ covenanted with the associates, to enlarge their wharf to the -width specified; each owner building according to his ownership. In the deed of D. I. and others, of certain flats 4o the associates, was this covenant, that so much of Deering’s wharf as rihey widened and built, “ should remain open, and to be used as a flee passage and way for all the- said associates and their assigns to» pass to, froim and upon the intended wharf and transact any business in common forever.” The deed of P. & J. to the associates, contains this clause, “fo-the end that the said part of said wharf now owned by us, may not obstruct or impede-the free- passage to, from and upon the said intended wharf, we covenant,, (the part of Deering’s wharf enlarged by them,) shall remain open as a free passage and way for them, their heirs and assigns, to pass to and from and upon the wharf intended to be built from the end of Deering’s wharf as. aforesaid, and transact any business forever.” The wharf was built. A question being raised by the grantee of that portion of the Peering wharf,, originally owned by P. & J., as to the right of the company to demand wharfage originating on his part: — It was held: —</p> <p>1. That the Peering wharf remained the property in severalty ef the original owners or- their grantees.</p> <p>2. That the part added thereto, by widening, remained for- use as a whwrf and passage way, and was an estate in common with the associates.</p> <p>3. That the proprietors of. the common estate were authciiz-ed to collect all wharfage accruing from any portion of the wharf.</p>

<p>On Report from Nisi Prius, Howard, J.., presiding.</p> <p>Bide in Equity.</p> <p>The report made by the Judge is not necessary to a® understanding of the case.</p> <p>The hill was brought to redeem certain real estate irons two mortgages. The defence was, that they had been foreclosed by> an entry in the presence of two witnesses, and the premises had since remained in the possession of the-mortgagees-.</p> <p>The certificate of the witnesses, Edmund- Phillips and Gideon P- Skillen, was recorded in the Cumberland registry of deeds, on June 12, 1839, and after describing the real estate, the title and registration, it concluded thus :■ — -“The condition of said mortgages- having been broken, the said Day claims to foreclose the same. We, tbe subscribers, at the request of said Day, went with him on all the premises described in the mortgage deeds, on. the sixteenth day of May, A. D., 1839, and saw- him enter and take peaceable» possession of the premises- In testimony whereof, we have hereunto subscribed our names.”</p>

<p>On Facts agreed.</p> <p>Assumpsit. The writ bears date on March 3, 1853, and contains two counts, one on a memorandum made by defendant, and the other for money had and received.</p> <p>The defendant sold to plaintiff, on July 9, 1847, a promissory note of the following tenor: —</p> <p>“North Yarmouth, Nov. 8, 1845. — One hundred and fifty-three days after date, I promise to pay Geo. E. Drew or order, the sum of two hundred forty-seven xV<r dollars. A. S. Haynes:” — and gave to him a memorandum in writing promising, that if said Haynes did not pay the amount of said note before it was outlawed, he would.</p> <p>Haynes left his home in this State within a year after the note was given and has never returned. He went from this State to New York, where he remained until 1850, when, in company with about fifty others, he started, by the overland route, for California. One week after their departure the company was heard from, since which time, nothing has ever been heard of said Haynes, or any of the party he started with.</p> <p>The case was submitted to the Court on these facts for a judgment according to law.</p> <p>relied in defence, upon the fact, that the maker of the note, within one year after it was made, left the State and has not returned; and that the statute of limitations does not attach whilst the promisor resides out of the State. R. S., c. 146, § 28.</p> <p>Furthermore, that the death of Haynes could not be presumed. Greenl. on Ev., vol. 1, § 41; Newman v. Jenkins, 10 Pick. 515.</p> <p>1. The plaintiff is entitled to maintain this action upon the agreement. The Court-will give such construction to the word “ outlawed,” as the subject matter of the contract and the situation of the parties indicate to have been the intent and understanding of the parties at the time. , Ohitty on Contracts, pp. 74, 75, 79,' 80, 81, 96, 97; Patrick v. Grant, 2 Sliepl. 233; Hawes v. Smith, 12 Maine, 429.</p> <p>2. But -whatever the construction adopted, as it is apparent from the statement of facts that it is now no longer possible for the plaintiff to enforce payment against the maker by legal process, the note is, to all intents and purposes, “ outlawed.”</p> <p>3. If no action is maintainable upon the agreement, and that is to be considered utterly futile according to the construction which the defendant now seeks to put upon it, then the money which the plaintiff paid to defendant for it, (the amount of the note,) is held contrary to equity and good conscience, and is recoverable under the count for money had and received’. Perkins v. Dunlap, 5 Maine, 268; Richards v. Allen, 17 Maine, 296.</p>

On Exceptions from Nisi Prius, Howard, J,, presiding. Trespass, against the late sheriff, for an act of his deputy in attaching a sleigh. It appeared in evidence, that defendant’s deputy took the sleigh upon a legal precept against the husband of the plaintiff, and the question for the jury, was whether it belonged to her husband.

On Exceptions from Nisi Prius, Wells, J., presiding. Trespass, for pulling down and carrying away a barn. The taking of the barn was admitted on the trial, and the defendant claimed title by purchase at an auction sale. It appeared that Joseph D. Davis, the husband of the plaintiff, became indebted to the defendant in September, 1851, on which debt judgment was obtained, and execution issued, upon which the barn was sold in due course of law.

On Exceptions from the former District Court, Emery, J. Debt, to recover one hundred dollars from the defendant, as a common seller, under c. 211, § 5, of the Acts of 1851. At the term this action was entered, the appearance of plaintiffs’ attorney, was called for, and his authority, to bring the action in the name of plaintiffs, denied. It was shown that the suit was commenced by direction of the Mayor, and approved by W. W. Thomas, one of the Aldermen.

On Report from Nisi Prius, Wells, J., presiding. Assumpsit, against defendant, as maker of .a promissory note, payable to the order of John Dow & Co., at the •Grocer’s Bank, Boston. On the back of the note was indorsed “John Dow & Co., waiving demand and notice,” and underneath this indorsement the names of “ Longley & Co.” The signatures were admitted to be genuine, and the note was read to the jury.

On Facts agreed. Assumpsit, against defendant, as guardian of Cylena H, Dyke, an insane married woman, who was decreed by the Judge of Probate to be insane, on the application of the overseers of the poor of Raymond, in June, 1853. Most of the charges were for money paid for her support at the Insane Hospital, in 1840, and all of them before the appointment of defendant. The defendant was duly appointed her guardian.

On Report from Nisi Prius, Sheplet, C. J., presiding. Assumpsit, on an account annexed to the writ. .The action was brought for the benefit of one Warren, plaintiffs’ assignee. Defendant was indebted to the plaintiffs as co-partners. After the company #as dissolved, one of the plaintiffs assigned the demand in suit to a creditor of the firm, in payment of his debt. Subsequently, the defendant, in a suit against the plaintiffs, was summoned as their trustee.

On Exceptions from Nisi Prius, Wells, J., presiding. Trespass, for an assault and battery, alleged in the writ to have been committed on Dec. 20, 1850. The plaintiff’s witnesses, stated the assault to have occurred in December, 1850. _ A deposition introduced by plaintiff, showed, that the assault he testified to, was in Dec. 1851, which evidence was objected to by defendant as irrelevant, but admitted by the Judge.

On Report from Nisi Prius, Wells, J., presiding. Assumpsit, to recover. payment for a quantity of corn sold by the defendant to the plaintiffs, but not delivered'. The writ was dated Jan. 3, 1853, and the general issiie pleaded. On Dec. 1, 1851, the plaintiffs bought corn of defendant and received a bill thereof as follows: —• “Messrs.

On Exceptions from Nisi Prius, Wells, X, presiding. Assumpsit. The writ contained the money counts only. The plaintiff filed the following specification. — “The plaintiff claims $125, which was paid by him to defendant,in full of a note for that sum, dated Dee. 13, 1851, given by plaintiff to defendant, and payable in May following, under a mistake of the fact, that said sum had been previously paid by plaintiff to defendant on account.

On Report from Nisi Prius, Shepley, O. J., presiding. Writ oe Entry demanding a part of the Lunt farm, (so called,) in Westbrook. The demandant claimed title to the premises by virtue of an attachment, made on May 9, 1851, and a subsequent levy in favor of one Baxter against Abraham W. Whitmore; and by a deed of the same from Baxter to himself. That judgment was recovered on April 24, 1852, for debt $264,75, and costs $20,63.

.On Facts agreed. Petition for Partition. The petitioner is a widow. Her father, many years since, died seized of the estate described in the petition, one eighth of which she was entitled to by inheritance, and which she now claims by her petition. The petitioner, after her marriage, was shed by the respondents, for a debt she owed before, and judgment was recovered against her and her husband, in June, 1838.

On Exceptions from Nisi Prius, Wells, J., presiding. Assumpsit, on a note .payable to order of Longley & Co., at the Suffolk Bank, in one month after date. The defence was, that it was an accommodation note, and that it was never presented at the Suffolk Bank.

On Pacts agreed. Assumpsit for money had and received. The writ was dated Nov. 22, 1845. The plaintiff corporation was incorporated in 1834, and by the third section of the Act, it was provided “ that the whole property of said corporation shall be divided into shares of such number as the corporation shall hereafter direct, and said shares shall be considered in all respects as personal estate.” It was authorized to hold personal and real estate.

On Exceptions from Nisi Prius, Shepley, C. J., presiding. The facts of the case are stated in the opinion of the Court. To the report of the committee appointed by the Supreme Court, the appellants filed the following objections:-— 1. Because by the terms of the report in said case, it does not appear, that said proposed road, was adjudged to be of common convenience and necessity. 2.

<p>On Facts agreed.</p> <p>Indictment.</p> <p>The York and Cumberland Rail Road Company, in pursuance of their charter, laid out and- built their road across one of the highways which the defendants were bound to keep in repair.</p> <p>Over their rail road, the company built .a bridge, where the highway formerly was, with abutments.</p> <p>The indictment was for the neglect of defendants in keeping this bridge and .abutments in a fit state of repair.</p> <p>If the Court shall be of opinion, that the indictment will lie, the case is to stand for trial, otherwise a nolle prosequi is to be entered.</p> <p>This indictment ought not to be sustained: —</p> <p>1. Because the York Cumberland Rail Road Co., are bound to keep in.repair the bridge complained of, and are liable to prosecution for any public or private injuries caused by its want of repair. R. S., e. 81, § § 16, 24; Act of incorporation of said company, § § 1, .8, 9 ; Inhabitants of Cambridge 8f Somerville v. The Charlestown Branch R. R. Co., 7 Mete. 70; Bacon’s Abr., (“Indictment,”) vol. 3, p. 549; 1 Hawkins’ P. C. 210; 4 Black. Com. 218; The Queen v. Birmingham Sf Gloucester R. R. Co., 9 Carr. & Payne, 469.</p> <p>2. Because the defendants are not bound to keep said bridge in repair. That duty is imposed upon tbe Rail Road Co. English statute on repair of bridges, 22 Hen. Till, c. 5; Coke’s 2d Inst. pp. 700, 701; Dane’s Abr. c. 79, art. 11, § 12; Mass, stat., March 5, 1787, on repairs of highways & bridges; Stat. of Maine, 1821, c. 118; R. S., c. 25, § 57; Magna Charta, (9 Hen. HI.,) c. 15 ; Russell on Crimes, c. 30, § 4; Case on repair of bridges, 13 Coke, 33; The Queen v. Sir J.ohn Bucknall, 2 Lord Raymond, 804; The Queen v. Inhabitants of the county of Wilts, 1 Salk. 359 and 358; Case of Langfort Bridge, Cro. Car. 365; Howe v. Stark-weather, 17 Mass. 240; Norwich t. Commissioners, fyc., 13 Pick. 60; Inhabitants of Webster v. Lamed, 6 Mete. 522.</p> <p>But even without the Act making it the duty of the rail road company, there is no liability imposed on the town by statute or by common law, to keep this bridge in repair, it being, (I.) not a bridge, but a viaduct: —</p> <p>It being, (II.) not a bridge properly part of the highway, either by location, prescription, or voluntary adoption; — nor such a bridge as is intended in the statute connexion, or as existed at the time of framing the 57th § of c. 25 of the Revised Statutes — and not a bridge of utility to the highway, but solely of advantage to the rail road company. Parker v. Boston and Maine Rail Road Co. 3 Cush. 108; Todd v. Rome, 2 Greenl. 55 ; Rowell v. Montville, 4 Greenl. 270; Estes v. Troy, 5 Greenl. 368; The State v. Strong, 25 Maine, 297; Rolle’s Abr. p. 368, pi. 2; Perley v. Chandler, 6 Mass. 453; The King v. Inhabitants of West Riding of Yorkshire, 5 Burr. 2594; Same v. Kerrison, 3 M. & S. 526; Broom’s Law Maxims, p. 554, — “ Qui sentit commodum sentire debet et onus. Dygert v. Schenck, 23 Wend. 446; Sawyer v. The Inhabitants of Northfield, 7 Cusli. 496, 497, 498'; The King v. Corp. of Stratford on Avon, 14 East, 343.</p> <p>contended, that but little light could be shed on our statute in relation to highways, by the decisions of England or of other States. What have the statutes of England in relation to bridges to do with it ? None of them, either ancient or modern, can possibly aid in the decision of this question. This is not a bridge, it is a highway. We have no obligation to build bridges, only as a part of highways. All of the defendants’ illustrations were from cases not pertaining to highways. The late case, cited from New York, was not in relation to a highway. Where an individual builds a bridge over a highway, it is for his own accommodation. This bridge was not built for the rail road accommodation, but for the public. Their tract did not require it.</p> <p>The law referred to by the defendants, is no doubt good, but it has no application to this case. ^</p> <p>The decisions in Massachusetts are made under a different statute. There is a condition in their statute which is not found in ours. The obligation on the part of the rail road to keep in repair such bridges, is there held to be such “ other provision” as is required by their law.</p> <p>Here the statute obligation upon towns, to keep their highways in repair, is absolute, and for such expenses and damages as they incur at rail road crossings, the company is responsible to them.</p>

On Exceptions from Nisi Prius, Howard, J., presiding. Assumpsit. The writ contained the common money counts, with a specification of the claims intended to be proved, and was tried under the general issue.

On Report from Nisi Prius, Wells, J., presiding. Assumpsit, for goods sold and delivered, amounting to •'§42,69, on May 16, 1851. The writ also contained the common counts and a specification, that under them, the plaintiffs Would, prove an order of this tenor “Mr. A. B. Baker, Please pay Messrs. Poor & Jose, $42,69',. in goods, and charge the same to my account. “ Peb. T, 1852, “ Josiah Baker.” Which order was accepted by A. B. Baker on the day of its date.

Indictment, for a felonious assault. The defendant was convicted, and moved to set the verdict aside as being against evidence and the weight of evidence. The indictment and the testimony are set forth in the opinion of the Court. maintained, that the evidence on the trial did not authorize the finding of the jury; that, 1st, it should appear from all the circumstances that the intention of murder existed in order to uphold the verdict.

<p>On Report from Nisi Prius, Wells, J., presiding.</p> <p>Debt, to recover the penalty prescribed in § 4, of R. S., c. 61.</p> <p>“ If any person shall take or otherwise wilfully destroy any oysters or other shell-fish, or obstruct their growth in their beds, in any of the waters of this State, except as provided in the two following sections, he shall forfeit to the person suing therefor, not less than one dollar, nor more than two dollars, for each bushel thereof including the shellfish so taken or destroyed.”</p> <p>Section 5, enacts that “the selectmen of the town, or assessors of the plantation, wherein such oysters or other shell-fish may be found, may, in writing, authorize any persons to take the same at such times and .in such quantities, and for such uses, as they shall think proper, and shall express in their permits; and any inhabitants of such town or plantation, or native Indian within this State, may take the same without any permit, for the consumption of himself or family; provided, that no person, without such permit, shall be allowed to take oysters, for any purpose, in the months of June, July or August.”</p> <p>Section 6. “Any fisherman may, without such permit, take any shell-fish suitable for bait necessary for his use, and in a quantity, not exceeding seven bushels, including the shells, at any one time.”</p> <p>The defendant pleaded the general issue, and filed a brief statement, setting up title derived from the grant of Charles I., King of England; and also justified the taking, on the ground that ho and those under whom he claimed, had been accustomed there to take clams for a period of sixty years-</p> <p>The taking of the clams, viz: twenty-five bushels, from their beds where they had been accustomed to grow and be from time immemorial, on the flats, and between high and-low water mark, but not more than one hundred rods from high water mark, was admitted y and further, that they were' not taken for any purpose authorized by the statute above cited; and that it was without the authority or permit of the selectmen of Scarborough*-</p> <p>The defendant introduced a copy of the record of an instrument entitled on the record “ a Charter of the Province of Maine,” from Charles I., King of England, &o.r to Sir Ferdinando Georges; and -a copy of an instrument from said Georges to Thomas Cammack, conveying the premises, all which were recorded in York county, in 1640.</p> <p>It was admitted that the premises described in the writ Were embraced in the instrument to Cammack, the defendant setting up the title which Cammack had.</p> <p>The grant to Georges, his heirs- and assigns, was by metes- and bounds, from.the entrance of Piscataqua- harbor, northeastward one hundred and twenty miles, and all the islands- and flats lying within five leagues of the main, along the coast,- “ with all and singular, the soils and grounds thereof, as-well dry as covered with water, and all waters, ports, havens and creeks of the seaj together with the fishing- of what kinds soever, as well pearls as fish, as whales, sturgeons,- or any other either in the sea or rivers, * * *' * saving always to all our subjects of our kingdom of England, liberty of fishing as well in the sea as in the creeks of the same Province and premises aforesaid, and drying of their fish, and drying of their netts ashore of the said Province and any of the premises.”</p> <p>The case was thereupon withdrawn from the jury, and it was agreed that if the full Court shall be of opinion, that the facts set up in defence w’ould not establish one, then-the defendant is to be defaulted for $25,- as damages, and legal costs. But if the facts stated would constitute a defence, then the case is- to be submitted- to a jury to- determine the matters set forth in the brief statement.</p> <p>assumed the following positions, to support which they cited numerous authorities, a large part of which .are necessarily omitted.</p> <p>1. The right of the plaintiff to recover is admitted, unless the matters set up in justification constitute a defence. R. S., c. 61, § § 4, 5, 6.</p> <p>2. It is well established by repeated decisions, that clams .are shell-fish, and therefore are embraced within the prohibitions of the 4th section of this Act. Parker v. Cutler Mill-Dam Co., 20 Maine, 353; 2 Dane’s Abr. c. 68, art. 2, § 14, p. 693; Bagot v. Orr, 2 Bos. & Pul. 472; Martin v. Wad-dell, 16 Pet. 367; Weston v. Sampson, 8 Cushing.</p> <p>3. It ever has been, and still is the established doctrine of the common law, that the liberty of fishing in the sea, or in the creeks and arms thereof, belongs as of common right, to the people of England, as a public common of piscary, .and of this right they cannot lawfully be deprived, even by the grant of the king. Mayor of Oxford v. Richardson, 4 Term R. 437 ; Bagot v. Orr, 2 Bos.'& Pul. 472 ; 2 Greenl. Cruise, p. 57 to 59, title 27, Franchise; 3 Kent’s .Com., 4th ed. p. 417; Parker v. Cutler Mill-Dam Co., 20 Maine, 353.</p> <p>4. It is clearly settled that the people of England cannot bo deprived of that right by any grant of the king since Magna Carta. Warren v. Matthews, 1 Salk. 347; Same •case, 6 Mod. 73; 16 Vin. Abr. title “Piscary,” p. 354; 2 Blk. Com. pp. 39 and 417; Átt'y Gen. v. Burridge, 10 Price, 350; Blundell v. Cateroll, 5 Barn. & Aid. 268; Duke of Somerset v. Fogwell, 5 Barn. & Cres. 875, (12 C. L. 395;) Martin v. Waddell, 16 Pet. 367; 2 Greenl. Cruise, p. 56, note 2; Weston v. Sampson, 8 Cush.</p> <p>5. The charter from the king to Sir Ferdinando Georges, is not a deed conveying private property, to be interpreted by the rules applicable to cases of that description. It was .an instrument upon which were to be founded the institutions of a great political community, .and in'that light it should be regarded and construed. Martin v. Waddell, 16 Pet. on page 411.</p> <p>6. The object of this charter appears on its face. It was made for the purpose of enabling the said Georges to establish a colony upon this part of our continent, to be governed, as nearly as circumstances would permit, according to the laws and usages of England; and in which said Georges, his heirs and assigns, were to stand in the place of the king, and administer the government according to the principles of the British constitution. And the people who were to plant the colony, and form the political body over which he was to rule, subject to the crown of England, were to enjoy and possess all the rights and privileges appertaining to the people of the mother country. Martin v. Waddell, 16 Pet. on page 412.</p> <p>7. The territory granted by King Charles to Georges was held by the king, not as private property, but in his public and regal character, as the representative of the nation, and in trust for the nation, and Georges only held in the same character, in lieu of and in place of the king, as the political trustee of the people of the colony. Johnson v. McIntosh, 8 Wheaton, 595 ; Martin v. Waddell, 16 Pet. on page 412.</p> <p>8. The charter of Georges never had any validity; and if it had, it became void long prior to the revolution, by the permanent establishment over the territory in question, of the authority and jurisdiction of Massachusetts. The controversy which preceded that event, was a political rathe* than a legal one, and was ultimately terminated in favor of Massachusetts. In this decision all parties concerned, both king and people, ever after acquiesced. Such being the facts, the rule of law is, that the judiciary follows the final determination of the question* by the political department of the government. Foster Sf al. v. Nielson, 2 Pet. 253 • Pollard's heirs v. Kibbee, 14 Pet. 353; Pollard’s lessee v. Files, 2 How. 592.</p> <p>9. When the revolution took place, the people of each State became themselves sovereign, and in that character held the absolute right to all their navigable waters and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government. Pollard v. Hagan, 3 How. 212; Carson v. Blazer &f als. 2 Binney, 475.</p> <p>10. The doctrine of the common law in regard to the soil between high and low water mark, was changed by the ordinance of 1641. Gerrish v. Proprietors of Union Wharf, 26 Maine, 384; Ancient Charters, p. 148; Moore v. Griffin, 22 Maine, 350.</p> <p>' 11. No change was made as to the rights of fishing or of navigation, but, on the contrary, these, were in express terms ratified and confirmed to be of common right. Weston v. Sampson, 8 Cush.; Drake v. Curtis, 1 Cush. 413.</p> <p>12. It being established that the right of fishing is a public right, common to all the citizens of the State, it follows, as a necessary consequence, that the regulation of the right is vested in the Legislature. Peables v. Hanna-ford, 20 Maine, 106; Commonwealth v. Chapin, 5 Pick. 199; Nickerson v. Brackett, 10 Mass. 212; Cottrill Sp al. v. Myrick, 12 Maine, 222; 3 Kent’s Com. (4th ed.) 413; Angelí on Tide Waters, 152, 153; Commonwealth v. Alger, 7 Cush. 53, 81 and 82; Weston v. Sampson 8 Cush.</p> <p>13. The justification set up by the defendant is insufficient to constitute a defence.</p> <p>I. It is not a prescription. 2 Greenl. Cruise, title 31, p. 218; 2 G-reenl. Cruise, title 27, p. 56; Angelí on Tide Waters, pp. 25 and 26, note 3, and p. 135; Arundel v. McCulloch, 10 Mass. 70; Melville v. Whiting, 10 Pick. 295 ; Parley v. Bangley, 7 N. H., 233 ; Delaware Sj' Maryland R. R. Co. v. Stump, 8 Grill & Johns. 479.</p> <p>11. It is not a custom. Cullom v. Binbury, 5 Iredell, 118; Medford v. Pratt, 4 Pick. 222; Fitzwalter’s case, 1 Mod. 105; Holt, 323; Ward v. Cresswell, Willes, 268; Grimsted v, Marlow, 4 Term R. 717; Drake v. Curtis, 1 Cush. 215.</p> <p>14. No one can prescribe against a statute, nor can a custom be supported against an Act of the Legislature. Grijlin'y. Wood, Cro. Eliz. 85 ; King v. Major, 4 Term R. 670; Master of St. Cross Hospital v. Lord Howard, 6 Term R. 38; 2 Greenl. Cruise, title 31, “Prescription,” p. 223.</p> <p>15. The right of taking shell-fish, except on the terms prescribed by the Legislature, has been prohibited by statute, at least since May 1, 1765. Repealed Act, Colony Laws, May 1, 1765; Mass. Laws, vol. 1, p. 726; Smith’s Laws of Maine, March 19, 1821; R. S., c. 61; Prov. Stat. 23 George III., c. 5, (1749.)</p> <p>Whatever this grant may be construed to convey, the first question is, had the king power to convey in manner he has undertaken. 5 Comyn’s Dig. title Navigation, A, p. 102. For the definition of Sea, vid. 2 Roll. 169, L, 20.</p> <p>The king has the property tarn, aquce quam soli and all profit in the sea and navigable rivers.' Cal. 17; Dav. 56, 57. So the property of the soil in navigable rivers which have the flux and reflux of the sea belongs to the king. 1 Siderfin, 148, 149. Ball v. Herbert, 3 Term R. 253.</p> <p>The soil between high and low water mark is part of the county, and may be within a manor. 5 Bacon, title Prerogative, B, p. 494.</p> <p>Such soil it would seem that the lord of manor might take and hold by grant or prescription.</p> <p>A subject by grant or prescription may have the water and soil of navigable rivers, as the city of London has the soil and property of the Thames by grant. R. Dav. 56, b.</p> <p>From this case I infer, 1st, that the Legislature has the power to grant the soil of a navigable river.</p> <p>2. That a grant of the soil of such stream in connection with the land, will not necessarily grant the exclusive use of the water or the fish swimming therein.</p> <p>3. That the Legislature has the power to grant with the soil a several fishery in the same. But as this is in derogallon of common right, it will not pass without express Words of grant. By the express terms of our grant the fight to all the fishings with a single exception, which does not touch the taking of clams, is conveyed to us. And this being done, no Legislature has a constitutional right to take it away from us. In Rogers v. Jones, 1 Wend. 237, the opinion of Mr. Justice Woodworth is especially commended to the attention of the Court. In Carter v. Murat, 4 Burrows, 2162, the same ground is fully sustained.</p> <p>The case of Cottrill v. Myrick, 12 Maine, 222, decides that such streams as the Damariscotta river are subject to the control of the Legislature so far as to appropriate the fish therein by a grant of an exclusive right to all .the fish in the towns of Newcastle and Nobleborough for their- emolument } it would seem to follow that the granting power Would have a right to appropriate a fishery in an arm of the sea, or creek, by grant to an individual.</p> <p>If the grant to Georges was in trust, it must be an implied trust. There are no words in tthe conveyance which would show a trust. It is said to be implied from the objects of the grant. If land covered by water and the fisheries, were conveyed in trust, why not the land covered by Wood ? Was there any difference in the terms of the grant between land covered with water and land covered with wood. Both are conveyed by the same terms, and if one is in trust, so is the other.</p> <p>If the second proposition taken by plaintiff were conceded, that clams are shell-fish, and that there might be such a thing as a clam fishery, the question returns, did not that species of fishing' pass by the grant to the extent of its boundaries ? In any grant ever made was a right to clams ever -contemplated to be exempted? Bagot v, Or, 2 Bos. & Pull. 472.</p> <p>As late as 1825, in Brown v. Stratton, 4 Barn. & Cress, 485, (10 Com, Law, 384,) the position that the king may convey to a subject, since Magna Carta, the lands and fisheries of every description, between high and low water mark, is most clearly recognized and settled. Also the king may grant land covered by the sea. Low v. Gavat, 3 Barn. & Adol. 967, (23 C. L. 203.)</p> <p>The case of Parker v. Cutter Mill-Dam Cor., 7 Shepl. 353, appears to imply that an appropriation of a clam fishery to private use might be made. Yide Greenl. Cruise, title 27, Franchise, § 3; 3 Kent’s Com. 416 ; 4 Mass. 522; Guild v. James, 6 Cow. 369 ; Angelí on Tide Waters, c. 5, 7; 17 Johns. 195.</p> <p>If the position taken by plaintiff is ""true, that since the passage of Magna Carta, the king of England is only trustee of all his subjects of this right, then the government here, which is the successor of the king in such trust, is only the trustee of all the people here, and has no more right to alienate or grant the same to individuals or corporations than the king had in England.</p> <p>Therefore, the granting to the town of Scarborough the right to control the taking of clanis, &c. is against common right and inoperative.</p> <p>The Colonial ordinance of 1641 is a part of our law. 25 Maine, 64. The owner of upland to which flats adjoin, may sell the upland without the flats, or the flats without the upland. 6 Mass. 435.</p> <p>Does the Act of this State in relation to the owner of those flats destroy his. common right of fishery? We contend it cannot have this operation and is for this reason void.</p> <p>So a man by grant or prescription may have a free fishery in navigable waters. Callis, 26; Com. Dig. vol 5, p. 290, title Piscary. By a grant of a separate fishery, the grantee sho'uld have the soil. 2 Black. Com. 39. A several fishery is presumed to comprehend the soil till the contrary appears. 5 Burr. 2814.</p> <p>The several kinds of fishery are clearly set forth in note 181, 3d Coke, lib. 2, cap. 11, 122, a.</p> <p>To meet the objection to our claim to a several fishery in the clams found and growing in our soil, supposing them to be included in the generic term of^fish, we rely upon the tases cited. The reservation in the grant applies only to such fish as are taken in nets. The privilege is confined to taking such fish as are dried. Clams are never dried. Drying their nets. Clams are never taken in. nets. The right therefore, reserved to the public to fish, is not co-extensive with that of Sir Eerdinando Georges and Ms heirs. A clam fishery, or a right to dig and take clams, was never contemplated in the reservation clause.</p> <p>We say again that the reservation clearly shows an intent to grant to Georges all other kinds not reserved. Exceptio probat regulum.”</p> <p>A construction, such as is contended for, would be subversive of the rights of the owner of the soil. He could not build a wharf on his own land over a clam bed. If he have clams grown on his own soil, and there can be such a fishery as a clam fishery, then the owner of the soil is the owner of a several cltem fishery and if the king had the power to grant the soil in a creek or arm of the sea, where the tide ebbs and flows, then such a fishery is ours.</p> <p>We would refer the Court, with great reliance, to the opinion of Mr. Justice Thompson, in the case of Martin v. Waddell, Id Pet. 361, as supporting the positions we take upon the facts in this case.</p> <p>1. The grant to Georges was within the power of the king to make, and was well made,</p> <p>2. The grant does by proper and apt words convey the land or territory in the grant described, including the land covered by the water of the sea, with all its creeks and inlets. »</p> <p>3. The grant to Georges conveys a right to a several fishery in all the waters covering the land conveyed, and to the extent of the land conveyed, -as well the waters of the sea as of the arms of the sea, as the creeks, and inlets, and the rivers where the tide does not flow, with the exception in the deed.</p> <p>4. That the clam fishery, if it may be so denominated, passed to the grantee by the terms of the grant, fully and completely, as much as the soil, and as a part thereof.</p> <p>5. The saving clause has no relation to the clam fishery.</p> <p>It is a new idea that a person owning lands bounded by the sea, has no right of the clam beds on his flats, where those flats do not extend one hundred rods from high water mark. Who owns the muscle beds on the flats in Back Cove ? They are shell-fish, and very profitable as manure. Have all the people a right to come on to those flats, and remove the clams and muscle beds bordering on the uplands ? If a man cultivate a bed of clams, are they liable to be taken by the public ? The owners of the muscle beds on the flats scattered along our border do not understand that they are liable to be taken by any one who may desire. ,</p> <p>It is apprehended that by our Court the right to appropriate and grant, and regulate the fisheries in navigable waters, as those not navigable, is established upon authority. Fuller v. ¡Spear, 14 Maine, 411.</p> <p>That such fishery is a common right, see Peck v. Lockwood, 5 Day, 22. By that case the digging of shell-fish is a common right. And it then admits that the proprietor of the land may acquire an exclusive right to fish thereon. I cite also 6 Cowen, 369 ; 3 Cains, 318; 2-Johns. 185 j 10 Johns. 236.</p> <p>Granting-that the same construction is to be placed on this charter as on that under consideration in Martin v. Waddell, there is nothing to show an intention to disconnect the prerogative rights from the power of government granted, and that consequently the right of fishing remains a common right, we say — ■</p> <p>1. The defendant does not claim an exclusive right, or rather that such a claim is not necessary to his defence. He claims and possesses a right to fish which cannot bé restricted, limited or modified, because it is a grant by the sovereign which he was competent to make.</p> <p>In the case of Martin v. Waddell, the original plaintiff claimed, and was endeavoring to enforce an exclusive right. It was held that his grantor possessed no such rights, having surrendered them.</p> <p>In this case the question is whether Georges, being the proprietor, could make a valid grant of a “ right in common” to enjoy these royalties so as to preclude him as proprietor from all power to limit or restrict his grant. If Georges could not restrict his grant to Cammack, neither could the king limit or restrict his grant to Georges, and the original charter remains subject only to the limitations incorporated in it.</p> <p>The rights there granted are .uncontrollable by the grantor. It was a contract not at variance with the public fight nor with any legal principle. It bound the hands of the grantor.</p> <p>This question, in this aspect of it, is of a right in common, free from any restriction by government. The questions discussed in the cases cited by plaintiff are of exclusive rights.</p> <p>2. It is enough in answer to the 8th point raised by plaintiff, to say that grants are not affected by political changes.' They remain unimpaired.</p> <p>3. On the principles assumed by'plaintiff in his. 3d and 4th points, he has no title. The plaintiff in error, in Martin v. Waddell, claimed an exclusive right under a law of New Jersey, which undertook to parcel out “ exclusive fishing rights.” The case failed for want of title.</p> <p>The sections of c. 61, R. S., under which this action is brought, are of a • similar character. The Legislature attempts to grant to Scarborough in effect an exclusive right, inasmuch as it restrains all persons from taking fish beyond a certain quantity, unless under a permit from the selectmen. The selectmen are not bound to give permits. They may do so. The statute therefore takes away the common right of fishing from individuals, even on their own land, and confers the exclusive right upon others.4 So far as this applies to waters more than one hundred rods from high water mark, it is void on the principles assumed by plaintiff. So far as it applies to land owned by individuals between high and low water mark, it is void on tbe general ground^ that, by the principles of universal law, no government can transfer the property of one man to another.</p> <p>4. The soil of the place where the clams were taken was in the defendant. If by no other- title, by the ordinance of 1641, as the owner of the upland. The clams are the growth of his ■ soil. The rights of the public under the ordinance are of navigation only. That right we may terminate by occupation.</p> <p>The Act then gives no ground of action against the defendant.</p> <p>1. Because he holds under a grant of title valid and legal and at variance with no common right.</p> <p>2. Because the Act on which plaintiff relies is an exercise of power not conferred on the Legislature.</p> <p>The closing argument for plaintiff was furnished' by Clifford Sf Appleton, in which the points assumed in the opening were sustained, at great length, and the defendant’s positions controverted.</p>

On Report from Nisi Prius, Wells, J., presiding. Assumpsit, to recover the price for certain goods. The general issue was pleaded, and a brief statement filed, that the cause of action had been submitted to arbitration by agreement of the parties under seal. At a former term of the Court a suit was pending for the same causes of action, and also a cross action.

<p>Where it appears that a way bad its origin in the aotionof the- torn,- and has-been repaired and used by the- citizens as a town way for a long series of years,- - without any complaint of the'owner of the-land over which it passes; it may he inferred that all the requh-ements of theiaw had* been complied with in its original location, though the reewds of the-towb-maynot e&hibif/iíS pi-oof,: * of such preliminary proceedings.</p>

On Report from Nisi Prius, Rice, J., presiding. Writ op Dower. . Tbe defendants were minor children of Charles Tarbell, deceased. The action was commenced for, and entered at the December term of the District Court, in 1851. A general appearance was entered under the names of the defendants, by George Evans, Esq., in the District and Supreme Court. At the August term, 1853, when this action came on for trial, Mr. Evans was appointed guardian for defendants ad litem.

On Exceptions from Nisi Prius, Bice, J., presiding. Complaint. The defendant was accused of selling a pint of spirituous liquor to a minor, knowing him to be such, and the case came up by appeal from the judgment of a magistrate.

On Report from Nisi Prius, Wells, J., presiding. Assumpsit on a note to the plaintiffs, dated Dec. 16, 1845, for $350, payable in ninety days from date, and signed by David C. Dinsmore as principal, and by Stephen Webber and James Steward as sureties. The general issue was pleaded and joined. The plaintiffs read in evidence the note declared on. The defence set up was that the note had been paid.

On Report from Nisi Prkis, Tenney, J., presiding. Assumpsit. The general issue was pleaded. The note declared on was dated at Clinton, Jan. 28,1840, payable to order of plaintiff “in legal services”'on demand. The writ was dated July 17, 1851. At the time the note was given, the plaintiff was a trader living in Clinton, and the defendant an attorney at law, hi ring an office in the same building.

On Exceptions from Nisi Prius, Bice, J., presiding. Trover, for the conversion of a Piano Eorte. Both parties claimed under one Bartlett, who mortgaged it to defendant, in Feb. 1851,-which mortgage was recorded, and some months after, (Nov. 4, 1851,) gave a bill of sale of it to plaintiff, but he could prove no delivery or possession. The plaintiff introduced evidence tending to show, that the mortgage was made with the design of defeating the creditors of Bartlett.

On Facts agreed. Complaint under c. 131, R. S., which was entered at the April term of the District Court for the trial of civil actions in 1852. At that time there were separate terms fixed by law for -the trial of criminal matters. The child was born alive but died in August, 1852, at the age of eight months. The defendant was its admitted father.

On Facts agreed. Trespass. The writ was dated Aug. 16, 1849, and contained two counts; one for breaking and entering plaintiff’s close and taking a yoke of oxen and heifer, the other for taking the same property. The damages were laid at $100. The question was merely as to costs.

<p>On Report from Nisi Prius, Bice, J., presiding.</p> <p>Case against the defendant, as a deputy sheriff for not making an attachment on a writ committed to him with special directions, and which he neglected to serve.</p> <p>When the plaintiff’s attorney gave the writ to the defendant for service, he said he had already attached some logs, and that they were ample security for the lien claims. The attorney directed him to make a subsequent attachment on the lot of logs and complete the service by leaving a summons. The defendant said- he would. After keeping the writ three months, the defendant returned it to plaintiff’s attorney, without any service being made.</p> <p>The principal facts in the case will be found in the opinion of the Court.</p> <p>The case was submitted to the full Court for a decision.</p>

<p>Where the inhabitants of a town neglect to open and build a legal road, laid out by the Commissioners, within the time limited for that purpose, they become liable to pay the expenses consequent on such neglect.</p> <p>The liability of the town to pay for the expenses of mating the road, attaches at that time.</p> <p>Although the territory over which the road is laid, was incorporated into another town before the road was opened and completed by the agent, this will not relieve the town, in which the road was when laid out and ordered to be opened, from its liability for the expenses of building it.</p>

On Report from Nisi Prins, Rice, J., presiding1. Assumpsit. This action was commenced on Nov. 20, 1850, on the following account: — Oct. 6, 1849. Eor 1 chaise and harness, $30,00. It appeared in evidence, that the defendant wished to buy a second hand chaise which was owned by the plaintiff. It was in the stable attached to the plaintiff’s house.

On Report from Nisi Prius, Rice, J., presiding. Petition for Certiorari. The facts in the case are disclosed in the opinion. The case was reported for the decision of the full Court.

<p>On Exceptions from Nisi Priws, Rice, J., presiding.</p> <p>Petition por the Writ op Certiorari.</p> <p>The assessors of the town of Winslow, about the middle of April, 1850, posted up notices in that town, notifying the inhabitants thereof, to bring in to them, true and perfect lists of their polls and estates, not exempt, by law, from taxation, as of the 1st of May, 1850.</p> <p>It was admitted that one Joseph Eaton, one of the inhabitants of that town, presented no such list, but sent in to the assessors such a iist by the hand of a third person, on May 20, 1850.</p> <p>Eaton complained to the assessors, that the valuation of Ms estate was greatly overrated and asked for an abatement. This was denied, and he then applied to the County Commissioners.</p> <p>On the hearing before the Commissioners, the then respondents moved, that the petition of said Eaton should be dismissed, for want of compliance on his part with the provisions of R. S., e. 14, •§ 18.</p> <p>The Commissioners denied the motion, and considered that said Eaton was overrated, and ordered a reimbursement to him from the treasury of said town of $6,16, for money tax, and $3,86, for highway tax, of that year.</p> <p>The reasons alleged, that the proceedings and records are erroneous, were, that said motion should have been granted, and that the Commissioners had no right to order the reimbursement to said Eaton of the sums mentioned.</p> <p>The presiding Judge refused to grant the writ, and the petitioners filed exceptions.</p>

On Facts agreed. Assumpsit on two promissory notes, dated December 1st, 1846, and signed P. M. Ware, principal, S. W. Weston, Stephen Webber, sureties, one payable in three, the other in six months from its date. The writ, dated Nov. 14, 1851, was made against1 Ware, alone, and service made, and the action entered at the late District Court, December term, 1851.