Volume 38 — Maine Reports

<p>-Of the construction of a -will.</p> <p>In determining the meaning- of a particular devise reference may he had to the other provisions of the will.</p> <p>iThat a devisee may have an estate of inheritance, it must appear to have been the intention of the testator by the words used in the devise, or clearly implied from the entire instrument.</p> <p>A testator made the following devise: — “I give and bequeath unto my son O. P. the land he is now in possession of, also one-half of lot No. 5, to him during his natural life to improve, and then to his heirs after him for their sole right— held, that as the other clauses in the will furnished no evidence of an intention to give the devisee an estate of inheritance, he took only thereby an estate for life.</p>

<p>On Exceptions from Nisi Prius, Tenney, J., presiding..</p> <p>Entry. The action was brought by the heirs of Ephraim Wilson to recover possession of his late homestead.</p> <p>In 1835, the said Wilson conveyed the premises describe# by deed of warranty to one of his sons, William Wilson,, his heirs and assigns, on this condition, “that the said-William Wilson is to maintain and support in a comfortable and convenient manner the said Ephraim Wilson,.together with his wife Eunice Wilson, also Ephraim Wilson, jr., and Polly Wilson, children of the said Ephraim, during their natural lives j. then this deed to remain in full force and virtue, otherwise to be null and void.”</p> <p>The plaintiff entered and took possession, of the premises before the commencement of this action, for condition-broken in the above deed.</p> <p>It appeared that the grantee Wilson, had alienated the premises to the defendant, and consigned Ephraim Wilson, jr., and Polly to- him to maintain, the consent of Polly was signified in writing, but none by Ephraim. The defendant had also kept Ephraim at ¿different places.</p> <p>There was evidence tending to show that Ephraim was-not properly cared for, and also evidence tending to show that all was done for him that could be. William, the-grantee of Ephram, senior, was admitted to testify for defendant, after being released from his covenants, against the objections of plaintiffs.</p> <p>The Judge was requested to instruct the jury, that the trust charged upon the grantee in Ephraim Wilson, senior’s-deed was a personal one, and that he had no authority to transfer the care and support of Ephraim and Polly to-•other parties, and himself leave them to be cared for by .strangers.</p> <p>To obtain a decision upon other points in the case, the “Court ruled that the grantee had a right of alienating the •estate and transfer the charge and support of the persons named in the condition to any one he might choose.</p> <p>A verdict was returned for defendant and plaintiffs excepted.</p>

Exceptions, Bice, J., presiding. This was an indictment against defendant in which were two counts. The first count charged him. with larceny of sundry packages of money belonging to different individuals.

On Report from Nisi Prius, Rice, J. presiding. Assumpsit on account annexed. The general issue was pleaded. The items in the account were sold and delivered to defendant’s testator, but the plaintiff was not authorized to sell spirituous liquors. Two items of the account being for alcohol, the defendant contended that the action could not be maintained. Thereupon, on motion, those items were stricken out by leave of the Court, against the defendant’s objection.

On Exceptions from Nisi Prius, Rice, J., presiding. Case. The writ alleged that the plaintiff owned a parcel of land in Hallowell, bounded on the south by Winthrop street on which was a vaulable house and stable, and a stonewall erected thereon for the protection and support of the land and dwellinghouse; and that the Kailroad company dug down and removed that part of the highway which was in front of the dwellinghouse, stable and stonewall, to the depth of four feet,…

Exceptions from Nisi Prius, Rice, J., presiding. On Complaint.

On Report from Nisi Prius, Rice J., presiding. Trespass, quare clausum. The Court were authorized to draw such inferences as a jury might from the evidence legally*-admissible, and enter such judgment as the law applicable thereto might require. If the action were maintainable a default might be entered, but if the value of the school-house were not recoverable, then nominal damages only were to be assessed. If the action could not be supported, a nonsuit to be entered.

On Report from Nisi Prius, Rice, J., presiding. Assumpsit by the payee of a promissory note against the defendants as joint and several promisors. The note was signed by Jones, one of the defendants. On the back were the words “without demand or notice,” and the names of the other defendants below. Jones was defaulted, and the other defendants pleaded the general issue.

On Report from Nisi Prius, Rice, J., presiding. Trespass for taking the plaintiff’s horse. The defendant justified as collector of taxes of the town of Monmouth for the year 1852, and a sale thereof under a warrant from the assessors of that town for that year. A tax was committed to defendant to collect assessed on the plaintiff’s poll, real and personal estate to the amount of $10,94.

On Exceptions, Rice, J., presiding. Assumpsit on a note of hand for $174,50, dated March 29, 1850. The general issue was pleaded. Crowell, one of the defendants, was arrested and tried on twenty-one warrants, before a magistrate, for violations of “an Act to restrict the sale of intoxicating drinks,” approved August 16, 1846, and was convicted and ordered to pay a fine and the costs on each complaint. From these judgments an appeal was entered and allowed.

<p>On Exceptions from Nisi Prius, Rice, J., presiding.</p> <p>Slander.</p> <p>After a verdict for plaintiff for nominal damages, a motion was made by Ms counsel to set it aside, because it was discovered that one of the jurors was disqualified by law to sit in the trial.</p> <p>The brother of one of the jurors was the husband of a sister of the defendant.</p> <p>The motion was denied, and exceptions taken.</p>

On Exceptions, Rice, J., presiding. Assumpsit to recover a reward for giving information where Horace Bonney, a prisoner escaped from the jail in Augusta, of which defendant was keeper, might be found. Evidence was introduced tending to show that the plaintiff did give the information and was to be paid for the same.

On Facts agreed. Debt on a bond given by defendants, October 25, 1847, on the appointment of one of them as the guardian of the minor children of William Lewis, deceased, the other signed as surety. The inventory was duly returned on the first Monday of November, 1847, but contained no personal property. It described only a small piece of real estate with two small dwelling-houses thereon, appraised at $350.

On Exceptions from Nisi Prius, Rice, J., presiding. Assumpsit on a note of hand, tried before a justice, and the plaintiff recovered a judgment. The defendants claimed an appeal and the action was entered in the Supreme Judicial Court and continued. The record of the justice stated that the defendants appealed, that the plaintiff waived surety, and no recognizance was entered into by the defendants as principals, either in person or by attorney.

On Report from Nisi Prius, Rice, J., presiding. This action was to recover for the loss of sixteen tons of hay. It was stipulated that the Court might draw the same inferences from the evidence and admissions as a jury: and if the defendants are liable in any form of declaring, they are to be defaulted; otherwise a nonsuit to be entered.

On Report from Nisi Prius, Rice, J., presiding. Entry. After the evidence was introduced the cause was taken from the jury, and brought up on report, it being agreed that the Court might draw such inferences as a jury might; and if in their opinion the action is maintainable, the tenant is to be defaulted; otherwise the demandant to become nonsuit. The facts are stated in the opinion.

<p>On Exceptions, Rice, J., presiding.</p> <p>Assumpsit, to recover one half of the net earnings of the steamboat J. D. Piei’ce, for 1851.</p> <p>It was in evidence that the plaintiffs purchased one half nf the steamboat in May, 1851, and that the net earnings for that year were $3664,83, which were paid into the hands of defendants’ intestate, but $1000 thereof had been paid to plaintiffs.</p> <p>In defence evidence was introduced tending to show that in 1850, the steamboat Lawrence was run on the Kennebec in opposition to the J. D. Pierce, and that a committee of the board of Directors of the K. & P. R. R., consisting of Reuel Williams and two others, met the owners of the Lawrence in May, 1851, when it was agreed that the plaintiffs should purchase one half of the J. D. Pierce, and the owners of the Lawrence the other half, (she being then owned by one Pinkham,) -and to stock her gross earnings with those of the Lawrence, to be equally divided between their respective owners at the close of the season; the directors of the railroad to control as to the fare, the hours she should run, and the trains with which she should connect.</p> <p>The Pierce was bought accordingly.</p> <p>The two boats ran awhile alternately, between Augusta and Bath, but their earnings were not enough to pay their expenses, and in June following, it was agreed by all concerned that the Lawrence should be withdrawn and run elsewhere. Captain Kimball was to have the general charge of the Pierce.</p> <p>One witness stated he had seen a letter among the papers of the intestate, written to him by Reuel Williams, which he once read, but could not state its contents. There was in it some complaint about the running of the Pierce. (Notice had been given to defendants’ counsel to produce this letter, but they declined.)</p> <p>The plaintiffs requested the instruction, that the writing and sending that letter, by the president of the board of railroad directors, was, in the absence of proof to the contrary, to be presumed to be the act of the whole board, or at least, in connection with the opinion of Henry Reed, (as testified to by him) on the same subject, it was to be presumed to be the act of said committee, and as that committee were authorized to stipulate the terms of the said purchase of the Pierce, they were competent, as such, to complain, in behalf of the whole board, of any violation of those terms; and the Court was desired so to instruct the jury, which was not given; but the Court did instruct the jury that the plaintiffs would be entitled to recover the balance of one half of the net earnings of the Pierce (one thousand dollars having been paid,) unless they were satisfied that there was a contract entered into by them, by which the earnings of the Pierce were to be stocked with the earnings of the Lawrence. If they were satisfied that such a contract had been made, the plaintiffs would still be entitled to half of the earnings of the Pierce, provided they were satisfied that the owners of the Lawrence had violated the terms of that contract; but if such a contract existed, and had not been violated, then the plaintiffs would not be entitled to recover, unless it was made to appear that the defendants’ intestate held in his hands funds, the proceeds of the earnings of both boats, which belonged to plaintiffs.</p> <p>The verdict of the jury was for ‘defendants, and the plaintiffs excepted to the instructions given, and the refusal to give those requested.</p> <p>1. The instructions asked for by plaintiffs, were proper and important, in connection with the second clause of the instructions actually given, as to “ violation” of the terms of the bargain as set up by defendants.</p> <p>2. The third clause of the instructions given was wrong.</p> <p>Plaintiffs had made out their case and rested. Defendants met it by setting up a special bargain, the operation of which they contended went to defeat plaintiffs’ case.</p> <p>The burden was on them to show in proof every thing necessary to exhibit such a result, fully and completely. 13 Pick. 77; 2 Denio, 616.</p> <p>But there was no proof, in fact, of the earnings or losses of the Lawrence. And no presumption existed as to whether she earned or lost, or as to the amount of either loss or gain.</p> <p>(The counsel also argued a motion, which was filed, to set aside the verdict as against evidence.)</p>

<p>On Exceptions from Nisi Prius, Rice, J., presiding.</p> <p>Assumpsit on a promissory note given in March, 1841, to Nathapiel Motley in part consideration of a deed of a parcel of real estate.</p> <p>The defence was a failure of consideration.</p> <p>There was proof tending to show that Nathaniel Motley was the husband of plaintiff, when the deed was made, and so remained until May, 1850, when she was divorced from him; that he gave to her the note in consideration of her signing the deed of said real estate to defendant, therein relinquishing her right of dower, at or about the time the deed was made, but it was not indorsed until the winter or spring of 1849.</p> <p>There was evidence tending to prove, that at the time the note was indorsed to plaintiff, he (Motley,) was indebted to the defendant for about $60, due on a note Sawyer had taken of one Dennis, on an agreement with Motley that he would allow the same upon the note in suit.</p> <p>Evidence was also introduced tending to show that Motley was at that time insolvent, and so remains.</p> <p>At the time the deed was given there was an attachment upon said estate, a judgment afterwards obtained, and an execution levied upon the same, and the whole set off to satisfy the same, and Sawyer afterwards purchased the title of said levy, to protect his title from Motley. The estate was appraised on the execution at $342,65, and there was evidence that the real value of the property was between that sum and $500.</p> <p>There was evidence that prior to the indorsement of said note, the plaintiff knew of the insolvency of Nathaniel, of his indebtedness to defendant, and that said estate had been levied upon.</p> <p>The Judge instructed the jury that this action being in the name of an indorsee of a negotiable promissory note, and the defence being a failure of consideration, the first question to be determined, was, whether the defendant was in such a position as to be entitled to set up this defence.</p> <p>That if the note was transferred and indorsed to the plaintiff by the original payee before it became due and payable, for an adequate consideration, without notice that there was any defect or infirmity in the note, then the defendant would be precluded from setting up this defence. But if the note was not transferred until after it was due, or if at the time of its transfer the plaintiff had notice that there was a defect in it for want of, or a failure of consideration, or if the transfer was made for the purpose of defeating the creditors of Motley, then the defendant would be let in to make the same defence against the note as if the action had been brought in the name of the original payee.</p> <p>That an adequate consideration, means a valuable and fair consideration.</p> <p>That in determining whether this transaction between Motley and the plaintiff was fraudulent or otherwise, they would look at the alleged consideration for the transfer of the note (the relinquishment of dower ) as well as the other circumstances attending it, and if in their judgment there was a consideration so inadequate as to satisfy them that the transaction was colorable only — a mere sham — they might for that reason so far set aside the transfer, as to let in the defence set up.</p> <p>That they would allow the amount of the Dennis note, if they were satisfied that at a time when Motley had the right to control the note in suit, he had agreed with the defendant to indorse said Dennis’ note thereon in part payment.</p> <p>The defendant requested the following instructions : —</p> <p>1. That if Sawyer was a creditor, at the time of the indorsement and transfer, of Nathaniel Motley, the husband, he could not transfer said note to the plaintiff, she then being his wife.</p> <p>2. That if they find that Motley had agreed to indorse the Dennis note held by Sawyer, upon the note in suit, before it was indorsed to plaintiff, that would constitute Sawyer a creditor of Motley to the amount due on said Dennis’ note; and that if there was an attachment upon the estate deeded, at the date of the deed, which ripened into a judgment, and which judgment was levied upon said land, that would constitute an incumbrance on said estate, and the covenants of said deed against incumbrances would be broken, and that would constitute Sawyer a creditor of Motley.</p> <p>3. That if Motley was insolvent at the time of the transfer of said note, he could not in law transfer and convey said note to his wife without adequate consideration.</p> <p>4. That an arrangement between Motley and his wife, during coverture, that she should hold said note in consideration of signing said deed, is not an adequate consideration for signing the same.</p> <p>5. That if the note was not transferred for adequate consideration, and Sawyer was a creditor at the time of the transfer, or that Motley was then insolvent, then Motley could not transfer said note to the plaintiff, she being his wife; that the transfer under such circumstances could not pass the interest and title to the note, so that she could maintain this suit against the defendant.</p> <p>6. That if the contingent right of dower was of greatly less value than the note, it would not be an adequate consideration, though done in good faith; also that by an adequate consideration the law implies here, a full consideration.</p> <p>The second and third of the foregoing requests were given, the others were withheld.</p> <p>A verdict was returned for plaintiff, and the defendant excepted.</p> <p>1st. Insolvency is a disqualifying fact, and renders the husband incompetent to deal with the wife in relation to his estate, under the statute of 1847.</p> <p>The power given to the married woman to take property in § 1, is declared in § 2, not to^be an absolute power j but subject to the proviso “that it was not conveyed by husband, directly or indirectly, without adequate consideration, and so that the creditors of husband might not be defrauded.</p> <p>Thus, if the husband had creditors, there must not only be adequate consideration for the conveyance, but as an additional security it must be done under such circumstances that creditors might not be defrauded. That creditors should not be subjected to the risk of being defrauded.</p> <p>Any other construction would allow an insolvent husband to arrange with his wife in regard to his estate, to the great embarrassment of his creditors.</p> <p>2d. Was there proof here of “adequate consideration, and so that the creditors might not thereby be defrauded ?”</p> <p>The legitimate tendency and inevitable effect of the transaction was to defraud the creditors of the husband; i. e., to deprive the creditors of their rights in his property; their right to have their pay ont of it.</p> <p>Motley was Sawyer’s debtor; his debtor on his covenants for the land for which the note was given.</p> <p>There was an attachment on the land, by which Sawyer lost his title. That attachment was as much an incumbrance as an inchoate right of dower would have been, and this has been settled to have been an incumbrance.</p> <p>The consideration for the note had failed by the incumbrance. Sawyer had a right to have damages assessed on Motley’s covenants, and had a right to have that note held to meet those damages.</p> <p>Any arrangement between husband and wife, which deprived him of that right, was defrauding him, in the sense of this statute; especially as the wife had knowledge of the facts.</p> <p>3d. But adequate consideration was not paid for the note. Can the release of such right be regarded as adequate consideration ? The right of dower, the husband being alive," is a mere contingent right, a possibility of dower.</p> <p>But the jury was not permitted to consider whether there was adequate consideration.0 See 6th request.</p> <p>And'the Court expressly put the transfer on the ground that inadequacy of consideration would not invalidate the act, unless the consideration was so inadequate as to satisfy them that the transaction was colorable only, a mere show.</p> <p>The defence was good, without regard to the purpose for which the transfer was made, if it appeared it was made without adequate consideration, for it could not have been made under the statute except upon such condition, there being creditors.</p> <p>The jury should have been told that if consideration was not adequate, equivalent, sufficient, then no matter what the purpose was, there being creditors of the husband, the wife had no capacity to take, without that fact being made to appear, and so the note was never legally transferred.</p>

On Exceptions from Nisi Prius, Bice, J., presiding. This was a Complaint to recover damage for flowing the complainant’s land by a mill-dam. Held: for more than forty years, at its present height. In the early part of its erection it was leaky, and in 1838 had been thoroughly repaired, and so kept ever since.

On Report from Nisi Prius, Appleton, J., presiding. Writ op Entry. The title of the demandant’s grantor depended upon the levy of an execution in his favor, against one Nathaniel D. Richardson, in January, 1846. That levy, according to the record, was for an excess of §1,05, more than was authorized by the precept and all costs, by virtue of which it was made.

On Exceptions from Nisi Prius, Tenney, J., presiding. Trespass. The writ was dated July 20, 1852. Under a written contract, the plaintiff cut and hauled for J. W. Lary, a large lot of logs in the winter of 1850 and 1851, in the valley of Spider river, Lower Canada. They were landed upon the round pond in this State.

On Report from Nisi Prius, Tenney, J., presiding. Debt on a judgment. Plea, nul tiel record, and brief statement, that the cause of action did not accrue within twenty years; and that it was paid and satisfied more than twenty years before the commencement of plaintiff’s writ, which was dated on March 4, 1852. The plaintiff sought by this suit, to revive so much of a judgment recovered in 1826, as purported to be satisfied by a levy made on land in May, 1826.

<p>On Exceptions from Nisi Prius, Appleton, J., presiding.</p> <p>Trespass. The charge alleged was for diverting the water from plaintiffs’ gristmill, whereby they were deprived of its use and profit.</p> <p>The right of plaintiffs, to maintain the suit, so far as possession or ownership was concerned, was not disputed. The defendant had no right to the use or control of the gristmill.</p> <p>A dam was built across Sandy river, and by means of the water so held, a sawmill and gristmill were propelled, and the machinery in defendant’s shop. David Graffan formerly owned the privilege.</p> <p>Through Graffan, in 1845, the defendant obtained the right to “ one half of the flume leading to said shop, with the privilege of drawing water from the mill-dam to carry small circular saws, turning lathe, planing machine, &c., when the water is not needed for the gristmill."</p> <p>The shop of defendant was just below the gristmill, and his wheel was supplied with water from the flume connected with that which supplies the gristmill.</p> <p>Between the gristmill flume and the main stream was a ledge over which the water flowed into the gristmill flume in such way, that when the gristmill was in operation, if the defendant’s gate was raised, the speed of the gristmill would be much retarded, notwithstanding the water would continue to run over the dam.</p> <p>Evidence was introduced that there was grinding for about one quarter of the time, and that between October, 1849, and November, 1852, when the gristmill was running, the defendant had his gate up, drawing water from the flume; that thereby, when the water was running over the dam, the speed of the gristmill was diminished so as to render it difficult to grind, and in some instances preventing grinding; and that in numerous instances when the plaintiffs wanted the water to propel their gristmill, on request being made to defendant to shut his gate, he refused.</p> <p>At the time of Graffan’s deed to defendant, the gristmill was propelled by means of tub wheels; afterwards other wheels, called “ Kendall or centre vent wheels,” were put in instead of the tub wheels. The evidence was contradictory as to which kind of wheel required the more water. Some evidence tended to show that the Kendall wheels were not put in the best mode, and that water was wasted by reason of too large a space being left between the wheel and the curb, and by reason of the stop water occasionally being off.</p> <p>It also appeared that the sawmill flume, which was under the control of one of the plaintiffs, but was not connected with the flume of the gristmill, leaked somewhat.</p> <p>Several instructions were given to the jury, among which were these; that if' by reason of unusual leakage and defects, enough water ran to waste, through want of ordinary care on the part of plaintiffs, to propel defendant’s wheel,, the plaintiffs could not recover; that if the Kendall wheels in the manner in which they were used did not require or draw, including the leakage, more water than the tub wheels,. then so far as this part of the case was involved-, the plaintiffs might recover; but if the leakage from the saw-mill was occasioned by neglect and want of ordinary care on part-of plaintiffs, that they could not throw on defendant losses occasioned by their neglect, or that of either of them, provided he used and wasted enough in the whole to equal the-amount required for the full enjoyment of the mill in 1845.</p> <p>The verdict was for defendant,, and the plaintiffs excepted' to the instructions.</p>

<p>Of the conditions under which the hook of a party, with his suppletory oath, is admissible.</p> <p>In an action for services rendered, if from the nature of the services, better evidence than a book charge may reasonably be supposed to exist, the party’s book with his suppletory oath, is not competent evidence.</p> <p>Nor is the plaintiff’s book-charge competent to show the price of his services.</p> <p>Thus an entry in plaintiff’s book for making certain rods of fence, and tho price per rod, is incompetent evidence to support the charge.</p>

On Exceptions from Nisi Prius, Tenney, J., presiding. Trespass. Plea general issue. Both parties claimed the land where the alleged trespass was committed, and the question was as to the line between them.

<p>On Report from Nisi Prius, Appleton, J., presiding.</p> <p>Case, founded upon § 49, c. 148 of R. S., for aiding and assisting Joseph Pattee, jr., on December 25, 1848, in fraudulently transferring certain real estate, to prevent its attachment by his creditor.</p> <p>The writ was dated on March 27,1852. The defendant put in two special pleas in bar, which are described in the opinion of the Court, together with the rejoinder and issue.</p> <p>On the issue presented by the pleadings, the plaintiff showed by several witnesses that the farm conveyed to defendant, by the debtor of the plaintiff, was worth $1500, when conveyed. His note against Pattee dated November 3, 1846, of $36,67, was also exhibited.</p> <p>The defendant introduced a copy of the judgment and papers referred to in his pleas; J. S. Tenney v. defendant.</p> <p>The plaintiff called J. S. Tenney, who testified that in his-suit at the trial, he offered to take debt, interest and cost.</p> <p>A juryman, who tried that case, also testified on the call of the plaintiff, that they rendered a verdict for single damages, and something for indemnity; and that the land being' of much greater value than the amount due, they did not estimate it. The evidence was all received subject to legal objections.</p> <p>Upon so much of the evidence as was legally admissible, the Court were to render such judgment as the legal rights of the parties should require.</p> <p>presented a written argument of great length. Among the points argued, after alluding to the pleadings and showing that the replication should have concluded with a verification, and how the issue in one view was immaterial and in another material, Were —</p> <p>1. That this was a penal action, under which head the case of Quimby v. Carter, 20 Maine, 218, was examined, and denied to be sound law.</p> <p>2. He showed wherein it differed from a remedial statute. The conclusions to which he came were, that if penal, one judgment against the defendant is a bar to any other for the same offence, 4 Mass. 431, and that it should have been brought within one year after the cause of action accrued, and that in penal actions it is unnecessary to plead the statute. 5 Maine, 490; 2 Saund. 63, a. N. 6.</p> <p>3. But if the Court should hold this to be a remedial and not a penal action, it was nevertheless highly penal, and there was no distinction in the manner of the construction of such statutes. 1 Maine, 139; 22 Maine, 541; 6 Conn. 667.</p> <p>The language of the section under which this action is brought, limits the action to one creditor and to one recovery.</p> <p>4. That, under this view of the proper construction of the law, it became immaterial whether the evidence offered proved the issue or not.</p> <p>6. He maintained also under the second issue that the testimony of Judge Tenney and that of the juror was inadmissible.</p> <p>6. That the verdict and judgment rendered in the action, Tenney against defendant, shows conclusively that it was. for double the amount of the property fraudulently conveyed, and that no evidence can be admitted to change its legal' meaning.</p>

<p>On Report from Nisi Prius, Tenney, J., presiding.</p> <p>Writ op Entry.</p> <p>The tenant pleaded the general issue.</p> <p>The demandant relied upon a deed from defendant to himself of the premises demanded, dated November 23, 1838, and recorded August 2, 1844. It was in the usual form with a covenant “ to warrant and defend the same from all incumbrances as made by me, but not otherwise.”</p> <p>The tenant read a deed of the premises to himself from one Knox, dated in 1830. He then offered a deed of the premises from himself to Stephen Hilton, dated Dec. 1,1843, and recorded on Dec. 11, of the same year.</p> <p>This deed was objected to and excluded.</p> <p>The tenant then offered an attested copy of a judgment in favor of the same Hilton against the demandant, in a writ of entry brought by him for the same premises. On objection this was ruled out.</p> <p>He then offered to prove that when the deed put into the case by demandant, was made and delivered, the delivery was to be void upon the fulfilment of a verbal condition that the horse which defendant had of plaintiff was returned to him, and that it was returned. This testimony was rejected.</p> <p>The tenant then put into the case, against demandant’s objection, a decree in bankruptcy of the plaintiff, under the U. S. Bankrupt Act, together with his petition and schedule, dated Nov. 16, 1842.</p> <p>Demandant then put in copies of the proceedings in bankruptcy, and a deed from his assignee in bankruptcy to himself of sundry parcels of real estate, and among them the premises demanded, which deed was dated Nov. 9, 1849.</p> <p>Upon so much of this testimony as was legally admissible the Court were to draw such inferences as a jury might, and render such judgment as the law warranted; unless the parol evidence should be held admissible and material, in which event, the action was to stand for trial.</p> <p>1. The title of Stephen Hilton to the premises, to rebut and disprove tbe actual seizin of the demandant, was admissible. Walcot & al. v. Knight & al. 6 Mass. 419; King v. Burns, 13 Pick. 28; Stearns on Real Actions, 381; Rollins v. Clay, 33 Maine, 140.</p> <p>2. The record of the judgment of Hilton v. demandant should also have been received. It shows that the constructive seizin must be in him. There can be no concurrent seizin of lands. It is immaterial how Hilton came by his title. It rebuts the seizin demandant claims in the premises.</p> <p>3. It is apparent that it was never the intention of the grantor to make a direct and unconditional delivery of the deed; and the evidence offered to show that it was conditional, was competent and material. Rhodes v. School District No. 14, in Gardiner, 30 Maine, 110.</p> <p>4. But if the deed to demandant is held valid, then the defendant became his tenant at will. Sherburne v. Jones, 20 Maine, 10; and that tenancy has not been terminated. R. S., c. 95, § 19; Matthews v. Demerritt, 22 Maine, 317.</p> <p>5. The deed from assignee of demandant to him conveyed no title. The assignee had none at the time of its date to convey. After the interval of seven years from the decree, he had no power to grant a title in bankrupt’s lands. § 8, of the U. S. Bankrupt Act.</p>

On Report from Nisi Prius, Tenney, J., presiding. Debt on a judgment. The plaintiff obtained a verdict and judgment against the defendant at the May term of the District Court, 1849, in Somerset, for $37,97, damages, and costs, $40,36, a copy of which was introduced. J. H. Webster, Esq., his counsel in that case, claimed his lien upon that judgment in this action.

<p>On Report from Nisi Prius, Tenney, J., presiding.</p> <p>Debt.</p> <p>The general issue was pleaded and two brief statements of defence filed, in which payment and an account in set-off was set up, and also an adjudication and settlement of the judgment by proceedings before the commissioners of insolvency on the estate represented by plaintiff.</p> <p>After the evidence was introduced, it was agreed, that upon so much of the testimony as was legally admissible, the full Court should render such judgment as the law may require.</p> <p>Benjamin H. Ellis, the plaintiff’s intestate, had a bond given to him by defendant in 1841, for the payment of §1500, which he assigned to certain of his creditors for security. Of the assignees, only Bradbury and Rice appeared to have any knowledge of the transfer, or assented to it before his death.</p> <p>In 1850, Ellis recovered judgment on that bond, and died soon after. This suit is upon that judgment. The costs only have been paid.</p> <p>In set-off was filed a promissory note or obligation given to William Weston & Co. and by them indorsed to defendant, signed by said Ellis and Joseph and Peter S. Ellis, the intestate’s administrator, payable in 1848, and of much larger amount than the judgment.</p> <p>The allowance of this note was objected to because the defendant was indorsee and because the partnership of Weston & Co. was not proved.</p> <p>Joseph Ellis had also deceased, and both his and Benjamin’s estate were in fact insolvent, on which commissioners had been appointed and this note had been presented and allowed against .both estates.</p> <p>One half of the judgment sued in this action was included in each inventory of those estates, and under license obtained from the Probate Court, so much of this demand as belonged to plaintiff’s intestate, was sold at auction to J. S. Abbott.</p> <p>1. The fact that defendant is indorser does not deprive him of the right of filing this note in set-off. The estate is insolvent, and the principles applicable to such estates must govern this case. A. similar statute to ours has been in force in Massachusetts for a long time under which many decisions have been made which show this defence is tenable. McDonald, Adm’r, v. Webster, 2 Mass. 498; Knapp, Adm’r, v. Lee. 3 Pick. 452; Jarvis, Adm’r, v. Rogers, 15 Mass. 389; Bigelow, Adm’r, v. Folger, 2 Met. 225; Phelps, Adm’r, v. Rice, 10 Met. 128.</p> <p>2. Under our statutes our Courts have followed a similar rule of decision. Fox, Adm’r, v. Cutts, 6 Maine, 240; Lyman, Adm’r, v. Estes, 1 Maine, 182; Medomac Bank v. Curtis, 24 Maine, 236.</p> <p>3. The matter in suit here has been settled by the commissioners on the estate and no action can be maintained thereon. The amount allowed against the estate is nearly three times the amount of this judgment, but not the whole amount of the note. It was the duty of the administrator to present the claim of the estate.</p> <p>4. But it is said this judgment was assigned, and therefore the commissioners had nothing to do with it. The evidence is wanting to establish it. And it has always been treated as belonging to the estate.</p> <p>5. If the assignment was real, the bond was not negotiable, and the assignees took it subject to the equities between the parties.</p> <p>6. But if the assignment is sustained, it should be for no more than is due the assignees.</p> <p>argued at length the following positions: —</p> <p>1st. The general issue being to the Court, and not to the country, no brief statement is admissible, nor any special matter in defence. R. S., c. 115, § 18.</p> <p>2d. The general issue admits the capacity of plaintiff to sue as administrator. Clark, Adm'r. v. Pishon, 31 Maine, 503.</p> <p>3d. No payment is proved. Smith, in equity, v. Ellis & als., 29 Maine, 423.</p> <p>4th. The note is not available in set-off, being held by defendant assignee. Smith, in equity, v. Ellis, 29 Maine, 426; Call v. Chapman, 25 Maine, 128.</p> <p>5th. The proceedings in the Probate Court constitute no defence. There were no appropriate pleadings under which such proceedings are receivable, there being no special plea, and the general issue being to the Court and not to the country, no brief statement is receivable. R. S., c. 115, § 18; McDonald, Adm'r. v. Webster, 2 Mass. 500; Knapp v. Lee, 3 Pick. 460.</p> <p>No evidence is in the case that the judgment sued was considered by the commissioners, but rather that the whole amount of the note was allowed, just as presented and claimed by the defendant.</p> <p>6th. The cause of action was assigned before the defendant purchased any interest in the note of Weston & Co., and hence that note cannot be available in the defence.</p> <p>7th. The proceedings in the Probate Court defeat and overthrow the defence. For if the defence should be sustained, he would in effect obtain his pay twice.</p> <p>8th. The Act to amend c. 120, R. S., approved April 19, 1854, § § 3 and 4, is applicable and conclusive against the defendant. Thayer v. Seavey, 11 Maine, 284.</p>

<p>By § 8, c. 195, of the Acts of 1835, it was provided that the bond, given by a poor debtor for relief from arrest, should be in double the sum for which he was arrested.</p> <p>And by c. 250, of the Acts of 1836, that the officer levying an execution should collect lawful interest upon the debt from the rendition of judgment.</p> <p>A relief bond, given subsequently to these provisions, in which the interest due upon the debt in the execution, formed no part of the amount therein, is not a statute bond, but is good at common law.</p> <p>In fulfilling the conditions of such a bond, the debtor is to perform no other statute provisions in relation to poor debtors, than are recited in the bond.</p> <p>The record of the justices of the peace and quorum, as to hearing the disclosure of, and administering the oath to a poor debtor, is not affected by the granting merely of a writ of certiorari to bring it before the Court.</p> <p>Evidence that on such bond the debtor disclosed notes of hand which were .not appraised, is not a breach of its conditions, and is inadmissible.</p>

On Report from Nisi Prius, Appleton, J. presiding. Debt, on a bond given by one of defendants, to free himself from arrest on a writ sued out against him by plaintiff upon contract, in which the debt exceeded §30. Upon the back of the writ was the certificate required by § 2 of c. 148, R. S., and the debtor gave the bond provided for in § 17 of the same chapter. Judgment was rendered in that suit and execution issued in April, 1852.

<p>The lieu which a party has on all logs and lumber for personal services performed thereon, may be secured by attachment of the property.</p> <p>But where judgment has been rendered on such claim, and the attachment lost by lapse -of time, ne lien claim can be enforced by an alias execution issued thereon.</p>

This was an action of debt upon a judgment. The principal defendant pleaded in abatement, that since this action was commenced, an alias execution was taken out on the original judgment, on which execution he was arrested and committed to prison, and there remained. To this plea there was a general demurrer and joinder. And it was agreed that upon .the pleadings final judgment might be entered.

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Trespass. The defendant seized two tons of English hay and two tons of salt hay belonging to the plaintiff, on Jan’y 10, 1853, and sold the same on Jan’y 17, 1853, on an execution against him. The plaintiff claimed it as exempted from attachment. He introduced evidence tending to show, that he owned ten sheep, one cow and one heifer, also one horse.

On Exceptions to the rulings of Tenney, J., presiding at Nisi Prius, and also on motion to set aside the verdict.- Trespass quare clausum. Plea, soil and freehold of defendant. Plaintiff offered the deposition of Quincy A. Parsons, which was objected to, on account of the insufficiency of the caption.

On Report from Nisi Prius, Tenney, J., presiding. Assumpsit on an account annexed. The writ was dated May 24, 1850. The pleadings filed were the general issue and the statute of limitations. The account of the plaintiffs’ intestate, commenced Dec. 29, 1815, and terminated on Aug. 27, 1843. The counsel for defendant’s intestate filed an account in set-off, commencing in October, 1844, and ending in Sept. 1845.

On Facts Agreed. Appeal from a decree of tbe Judge of Probate. Held: that the words “ father, mother,” in a statute requiring consent to the marriage of a minor daughter, meant “ lawful” father and mother, and that the marriage of a minor illegitimate daughter, though with the consent of the natural mother, was void. 1 Coke Litt. § 188, b, says : — “ And for the same reason, where the statute of 32 H.…

On Exceptions from Nisi Prius, Shepley, C. J. presiding. Assumpsit to recover tbe price agreed for building a school-house.

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Assumpsit on two promissory notes. The general issue and statute of limitations were pleaded. The defendant was a sub-contractor on railroads, and after giving the notes went to Massachusetts and continued to reside there several months with his wife, and from thence he removed into the State of Vermont, and with his wife resided there many months.

On Report from Nisi Prius, Shepley, C. J., presiding. The action was originally commenced before a justice of the peace, and brought up by appeal. The record stated, “amotion was made by defendant’s counsel before me to quash the writ, because it was not signed in my own handwriting, but the motion was overruled because I had authorized the signature.” The defendant then pleaded the general issue, and there was judgment for plaintiff.

Exceptions from Nisi Prius, Shepley, C. J., presiding. Trover, to recover the value of certain mill-logs, alleged to have been taken by defendants from plaintiff’s land.

On Facts Agreed. Assumpsit on a promissory note of defendants, dated Nov. 24, 1828, payable in one year from its date, with interest, for $154. On the back of the note were six indorsements in as many years, the last one being Dec. 5, 1838. The several payments were made as indorsed by Amos Newhall, one of the defendants. The note was witnessed. This action was commenced on Jan. 7, 1852.

Complaint under R. S., c. 131, Sheplet, C. J., presiding. After the preliminary evidence was introduced, the complainant was offered as a witness to prove the accusation against the respondent. She was objected to on the ground, that she had not remained constant in such accusation.

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Assumpsit to recover $100, which plaintiff gave to- defendant to keep for her on the day of her husband’s funeral. He told her he would return it in a few days. It was-mostly in gold. He subsequently refused to repay it. The defendant was executor of the estate of plaintiff’s-husband and claimed the money as pai't of tbe estate. A verdict was returned for defendant, and plaintiff excepted.

On Report from Nisi Prius, Shepley, C. J. presiding. Replevin for the tools of a book-binder and a lot of materials used in that trade. No copy of the pleadings was furnished, but they seem to have been the general issue and a brief statement of a lien claim upon the property as inn-holder, for the board of the defendant. The defendant kept the Commercial House at Rockland. The plaintiff went there on May 15, 1852, and stayed until June 11th, following.

On Report from Nisi Prius, Shepley, C. J., presiding. Debt on a poor debtor’s bond, dated Nov. 12, 1849. At the District Court in Feb. 1848, the plaintiff recovered judgment against the defendant, Nevins, for $4068,44, and costs. On the execution issued on this judgment the bond in suit was given.

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Trespass quare clausum. The pleadings were the general issue and brief statement of authority from the town to make safe and convenient a public highway, which they were bound to repair; and that the acts, &c., were done by defendant in performance of his duty as a committee appointed for that purpose. The plaintiff claimed title by possession and also by deed. The boundaries in the deed are recited in the opinion.

On Facts Agreed. Indictment. Appleton, J., presiding. Upon the arraignment of the prisoner and before pleading to the indictment, his counsel moved that it be quashed, because there was no seal of the Court affixed to the venires by which the grand jury were summoned. It was agreed that the validity of the indictment thus found should be submitted to the full court, and if valid, the cause to proceed to trial; otherwise that it should be quashed.

Case, to recover damages for injuries alleged to have been received by means of a defect in a public highway. The cause was tried before Appleton, J. After a verdict for the plaintiff the evidence was reported on a motion for a new trial.

On Facts Agreed. Assumpsit to recover fifty-five dollars. The plaintiffs chartered the defendant’s brig Emily, of which one Elisha Small was master, to perform a voyage from Portland to Port Conway in Virginia, and from thence to Bath with a load of timber, at a sum specified per thous- and. The voyage was performed. While the brig lay at Port Conway, Small obtained from the agent of the plaintiffs $55, and receipted for the same on the bill of lading.

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Entry to recover am undivided share of a farm described in the writ. Nul disseizin was pleaded. The demandant claimed under a levy made July 24, 1851, upon nine forty-fourths’of five-eighths of the farm, supposed to belong to the tenant.

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Entry to recover possession of three-twentieths of five-eighths of a farm. This action is against the same tenant as in Brown v. Clifford, ante, p. 210, and the title of demandant is by a levy upon an undivided portion of the same farm. Similar testimony was before the Court and jury, and the same instructions given. An additional question arose out of the pleadings.

On Report from Nisi Prius, Shepley, C. J., presiding. Debt on a poor debtor’s relief bond. Tbe defence was, that he' took the oath within the sis months allowed tO' him in the' bond. A certificate of the statute oath required,1 by two justices of the peace and quorum, was produced by the defendant'. The debtor disclosed demands against sundry persons, which were appraised by the justices.

Facts Agreed. Assumpsit. The writ was dated March 30, 1853, and brought upon a note dated Nov. 14, 1846. The general issue was pleaded, and a brief statement filed, that the defendant relied upon the limitation bar. The plaintiffs brought a suit on the same note on Nov. 12, 1852, returnable at the January term, in Lincoln county, in 1853, wherein James Smith of Brunswick, in the county of Cumberland was summoned as trustee.

On Motion to set aside the verdict as against the evidence and weight of evidence, and also against the law. Another reason assigned was, that the damages were excessive. The plaintiff, an inhabitant of Bath, received an injury, thought to be permanent, while returning to his boardinghouse on a dark night, by falling from the side-walk.

On Report from Nisi Prius, Tenney, J., presiding. Writ op Entry. Nul disseizin only was pleaded. The demandant claimed title to the land described in his writ, by virtue of a levy of an execution in favor of demand-ants against Truxton Lowell.

On Exceptions and motion for a new trial, from Nisi Prius, Tenney, J. presiding. Case. The action was before the Court on a former occasion, 35 Maine, 319, and the nature of it may there be found. The counsel for the plaintiff contended in his argument, that this was not a navigable stream within the meaning of R. S., c. 126, § 1, and that if so, plaintiff by force of that statute had a right to erect and maintain his dam to raise water for working his mill.

<p>On Exceptions from Nisi Prius, Tenney, J., presiding.</p> <p>Assumpsit.</p> <p>The action was for supplies furnished for the support of Joseph D. Lombard, wife and child, whose settlement wag alleged to be Thomaston.</p> <p>The principal question was the place of their settlement. It appeared he was first seen in Thomaston in April, 1844-, and hired out there for a few months. In the spring of 1845, he was coasting, afterwards was a common mariner in vessels sailing out of Thomaston, and the testimony tended to show, that he lived there more 'than five years together.</p> <p>In May, 1846, the pauper was married in Thomaston, and the testimony of the widow, (the said Joseph D. being dead,) tended to show that four days after, he went to sea, and after remaining a short time she went to Lincolnville on a visit, and was in Camden at her sister’s a part of the summer. He returned from sea in the summer of 1846, sick and went where his wife was at Camden on a visit. When he returned from sea in the summer of 1847, he found her there on a visit and stayed there a number of weeks.</p> <p>It appeared that Lombard, after remaining in Camden six weeks in the summer of 1847, did, for the first time, go to keeping house with his wife in Thomaston, not having before kept house at any place. He continued to live there until March, 1850.</p> <p>The defendants called one Joel R. Thompson, who testified that he sailed in the schooner Heard with Lombard in January, 1847, to New Orleans; that on his way out he said he should not live any longer in Thomaston; he spoke of it several times on their way out, but did not say he should reside at New Orleans; that he said nothing about moving when he returned home; that he did say he expected his wife was at Camden, and when he returned he was going to some other town. He stated on the way out at what place he was going to reside after his return from New Orleans; that it was other than Thomaston; but the witness was not allowed to state where he said he was going to reside, it being objected to.</p> <p>The defendant introduced the deposition of Chas. Worm-well, a portion of which, related to a conversation he had with Lombard at the time he was putting his dunnage on board the Heard in Jan. 1847, as to his intention of going to Camden to live, and a subsequent conversation of a similar import while Lombard was on board the Heard in the harbor and about going to sea. This part of the deposition was excluded. The part excluded was in these words, “ he informed me that he expected to have a vessel which he was to command in Camden, when he returned in the spring of 1847. He said he had some relations of his wife in Camden, who were going to assist him to a vessel. That he made arrangements for his wife to go to Camden as soon as she was done work at Mr. Levenseller’s, (where she was when we left,) where he intended to meet her when he got home.”</p> <p>The plaintiffs called Dr. Libby, who testified as to his attendance on the pauper. On cross-examination it appeared, that in the year 1852, he had contracted with the plaintiffs to doctor their poor for a specific sum, with the right as an additional sum, of what the town should collect for paupers having their settlement in other towns. A portion of the expenses incurred for Lombard, was embraced in the year 1852, for medical service^. The Court, upon objection being made, held him to be an interested witness.</p> <p>The witness then left the stand, but was afterwards recalled, and in answer to defendants’ questions, stated that the overseers of Richmond had paid him the amount of the bill arising within the year, and although then objected to as interested, by defendants, he was admitted and testified to the services before spoken of.</p> <p>The jury returned a verdict for plaintiffs. The defendants excepted to the rulings.</p>

On Exceptions from Nisi Prius, Appleton, J., presiding. Case, for diverting the water from plaintiff’s mill, so that he lost the beneficial use of the same. In 1826, one Hall Clements owned a mill-site on which he built a saw-mill. The year prior he obtained verbal permission of the owners of the land above to build a reservoir dam, to accommodate the mill he was intending to erect.

On Exceptions from Nisi Prius, Shepley, C. J., presiding. Case, for obstructing the water, and thereby injuring the plaintiffs’ mill between March, 1845, and Eeb. 1849. The plaintiffs wore owners of a dam and saw-mill, and the mill-site had been in use since 1826.

Bill in Equity. This bill was brought by plaintiff as administrator of Ephraim B. Stevens against W. Reed, jr., E. G-. Reed, Henry Hedge, Henry M. Springer, Amaziah Trask, William T. Libby and Benj. H. Reed, to account for the plaintiff’s share of the effects of an alleged partnership. The case was heard upon a general demurrer and answers by those who had been notified, and upon facts agreed.

<p>Writ op Error to reverse a judgment of the Supreme Judicial Court. The facts íd relation to that judgment are recited in the opinion of the Court.</p>

On Report from Nisi Prius, Rice, J., presiding. Bill in Equity to redeem land under mortgage. The defendant, holding a mortgage of the land described in the bill, caused to be published in a public newspaper of the same county, the following: — “Notice of forelosure.

On Report from Nisi Prius, Rice, J., presiding. Assumpsit to recover eighty-five dollars advanced to pay for certain repairs made on the schooner “Nidus,” at the request of the master. The vessel received damage by coming in collision with another within five or sip miles of Boston, and it was necessary to repair, and the money was advanced by plaintiff to pay the necessary bills. The defendant appeared by the records in the Custom House to be the sole owner.

On Exceptions from Nisi Prius, Appleton, J., presiding. Assumpsit to recover half of the contract price of a vessel frame. The evidence showed a parol contract to deliver the timber for a vessel frame, of which plaintiff was to furnish one half, to be hewn and prepared according to certain moulds. The timber was delivered according to the contract.

On Exceptions from Nisi Prius, Rice, J., presiding. Indictment. The defendant was indicted for having in his possession ten or more counterfeit bank bills at one time with the intent to pass them as true or false. Evidence was introduced tending to prove the essential parts of the indictment. The prisoner offered no evidence of Ms general good character.

<p>A loan made te some individual members of an Odd Pellows’ Lodge, for which a note was given to their Secretary, by name, may be recovered by a suit upon the note in the name of the payee, when he is authorized to commence it by the members of the Lodge.</p>

<p>A covenant by the vendee of certain bank shares, that he would indemnify and save harmless his vendor from any and all liabilities he may have incurred as stockholder, or from any loss or damage he may sustain from or on account of that capacity, is limited to such liabilities for damages as are recoverable by law of Ms vendor.</p> <p>For costs incurred and for time employed by the vendor in defending a groundless suit, in consequence of having been such stockholder, no action can be maintained upon such covenant.</p> <p>An individual stockholder has no authority to defend an action against the banking corporation, after the charter has been repealed and the effects have gone into the hands of receivers.</p> <p>■Where the plaintiff had sold to defendant certain shares in the Frankfort Bank, and took Ms covenant against loss or damage on account of having once owned them; and when the charter was repealed was appointed and acted as one of the receivers of the bank, and in a suit against it after such appointment had wrongfully agreed to a judgment against the bank, upon which judgment his own property was taken in part satisfaction for having owned such shares; for all expenses by him incurred in obtaining a reversal of such judgment, and expenses and time in defending judicial proceedings growing out of such illegal judgment, he has no claim upon the covenants of his vendee.</p>

On Exceptions from Nisi Prius, Nice, J., presiding. Case, based on c. 154, § 23, of N. S. The defendant was master of a vessel. The evidence in the case tended to show, that the defendant shipped'on board of his vessel, the plaintiff’s minor son, knowing him to be a minor, and transported him out of the State, without the consent of his father. Within a few days after his arrival at the port of destination, the son died. .

<p>The mere proof that the master sailed a vessel “ on shares,” will not authorize one of the part owners to he a witness for the master, in a suit against him for wages of one of the crew.</p> <p>In an action for services rendered, no damages can be recovered for the violation of a contract.</p>

<p>Where a voyage is broken up by shipwreck, the wages of the master terminate when the vessel and cargo pass out of his control.</p> <p>!For any subsequent services and expenses in securing and transmitting the funds belonging to the ’owners, he is entitled, as agent, to reasonable compensation.</p> <p>But such services must be in the implied employment of the owners, and not merely for himself.</p>

On Report from Nisi Prius, Hathaway J., presiding. Trespass. The suit was brought to recover the value of certain casks belonging to the plaintiff, and if entitled to recover for the liquor contained in them, the writ was to be amended accordingly.

<p>The grant of a water privilege cannot be modified by any of the rules of construction, where the intention of the parties is clearly expressed by the language of the deed.</p> <p>A grant of a water privilege for a specific puipose, will restrict the grantee, or those claiming under him, to its use for that puipose alone.</p> <p>A provision in sueh deed, that the grantee shall keep in repair a specified part of the dam from which the water is to be taken, furnishes no evidence, that it is a grant of a similar proportion of the water, as such a construction would be repugnant to the language used in the grant.</p>

■ On Exceptions from Nisi Prius, Hathaway, J., presiding. Indictment against defendant, for being a common seller of spirituous liquors, between April and September, 1853. A motion was made to quash the indictment for not being certified by the foreman of the grand jury, whose name was Benjamin B. Smith, and the indictment was certified by “B. B. Smith.” The motion was denied.

<p>On Exceptions from Nisi Prius, Hathaway, J., presiding.</p> <p>Indictment.</p> <p>The record of the Court showed that Benj. B. Smith was chosen foreman of the grand jury which found the indictment, which was certified to be a true bill by “ B. B. Smith,. Foreman.”</p> <p>The counsel for defendant seasonably moved to quash the indictment, because it did not appear to be certified by the foreman of the grand jury. That motion was denied, and defendant excepted.</p> <p>cited 1 Chitty’s Orim. Law, p. 32, also p. 363 of same; 3 Oowen, 463; 5 Johns. 84; 4 Johns. 119.</p> <p>There is no law nor usage, requiring signatures, either official or otherwise, to be written out at full length. The practice of abbreviating, or using initials only, is exceedingly common, almost universal, and yet no instance can be found, it is believed, where any instrument or judicial process has been held inoperative for such cause.</p> <p>Writs and executions, are in a vast number of cases signed by the clerk of the eourts in this manner. The only question in any case, where a question can be raised, must be, whether it be the proper signature of the officer, it purports to be.</p> <p>The mode of signature, whether by initial letter, or otherwise, is of no moment. Is the indictment certified by the person with his signature, who was really the foreman, is the sole question to be considered.</p> <p>The Court have judicial knowledge who is the foreman of its juries. They are empannelled in open Court, and answer to their names, pronounced in full. The indictments are delivered into the Court by the person sworn and recognized by the Court as foreman, purporting to be signed by him in that capacity. They are received by the Court from the hands of the person thus signing, and who has first responded to his name, and ordered to be filed.</p> <p>For authorities, if any are to be expected, upon a question like this, some may be found: —</p> <p>In State v. Stedman, 7 Port. (Ala.) R. 496, cited in U. S. Dig. Supplement, vol. 2, p. 146, title Indictment, I, b, § 40, it is said, “ where Alexander R. Hutcheson was appointed foreman of the grand jury, and a bill of indictment was indorsed Alexander R. Hutchinson, it was held, that if necessary, thejCourt would intend the two names to indicate the same person.”</p> <p>See State v. Kean, 10 N. H. 347.</p> <p>The indictment against Professor Webster, for murder, contested on every point by his counsel, was certified “ Dan 7 Rhoades, Foreman.” No exception to it was taken. Undoubtedly the name of the foreman on the record was “ Daniel.” Pamphlet Report by Dr. James V. Stone.</p> <p>The bill of exceptions in the case at bar, is signed only by the initials of the Christian name of the presiding Judge, with no addition of office. How are the Court to know that this is the signature of one of their number ? They know officially who the Judge is, for the commission is promulgated in open Court, with the Christian name in full, but how do they know that they are one and the same. Are the exceptions to be therefore dismissed ? Or will not the Court rather intend the two names to indicate the same person.</p>

<p>On Report from Nisi Prius, Appleton, J., presiding.</p> <p>Replevin.</p> <p>Plea, non cepit, and a brief statement that the property described in the writ was the property of defendants and not the property of the plaintiff; and that plaintiff had no right to the possession of the property at the time of the service of the writ.</p> <p>The officer who served the writ in this case, had another writ of replevin against the same defendants in favor of one William Todd; and the property taken on both was a cargo of lumber which had been shipped by the plaintiff and William Todd, on board the schooner Baltimore, for New York. These shippers belonged to Calais where the cargo was taken in. In a week or more after the vessel left port, she went ashore in a calm and fog, on an island called the " old man,” off Little Machias Bay, and was much damaged upon the rocks, and full of water.</p> <p>The accident occurred on May 18, 1852, upon that part of the island exposed to the open sea. A protest was noted, surveyors called, and on the next day, the captain caused the vessel to be stripped of her sails and rigging, to be advertized and the vessel and cargo sold at public auction the same afternoon. The defendants claimed title to the cargo through that sale.</p> <p>One point made was, as to the fairness of the sale, but the principal question at issue, and upon which most of the evidence bore, was its necessity.</p> <p>No means were taken to notify the plaintiff of the disaster, or to request any advice as to what measures should be taken.</p> <p>It appeared, that when the captain went to a notary at Machias Port, to make his protest, he was advised that there was a telegraphic station at Machias, which communicated with Calais, and that his ride would not have been an hour longer by coming that way; and was advised to go there and give notice to the owners, but the captain thought it of no use as the danger to the cargo was so great.</p> <p>It was testified that the vessel might' have been got off by a steamboat, but how far it was, where one might be obtained, did not appear.</p> <p>A tender was made by plaintiff, on May 26, 1852, for the amount paid for the cargo, and expenses of taking it out, which not being accepted, and the defendants claiming the cargo as their own, this suit was commenced.</p> <p>Several requests were made by the defendants for instructions to the jury, among which the 2d, 3d, 7th, 8th, 9th and 10th were as follows; viz: —</p> <p>2. That the true criterion for determining the occurrence of the master’s authority to sell, is the inquiry, whether the owners or insurers, where they are distant from the scene of stranding, can by the earliest use of the ordinary means to convey intelligence, be informed of the situation of the vessel and cargo in time to direct the master before they will probably be lost; that, if there is a probability of loss, and it is made more hazardous by every day’s delay, the master may then act promptly, to save something for the benefit of all concerned, though but little may be saved; that there is no way of doing so more effectual than by exposing the vessel and cargo to sale, by which the enterprise of such men is brought into competition with such as are accustomed to encounter such risks, and’ who know from experience how to estimate the probable profits and losses of such adventures.</p> <p>3. That, where a vessel is wrecked or stranded on an island in the open ocean, and the vessel and cargo are in imminent peril of immediate loss, and there is a telegraph station within a distance of twenty miles by sea and land from the scene of the wreck or stranding, it is not the duty, of the master to leave the vessel and cargo and proceed to such telegraph station, and communicate with the owners prior to a sale for the benefit of all concerned.</p> <p>7. That, if the jury should find, that the sale of the cargo of schooner Baltimore was fairly conducted and the lumber was fairly knocked off to Stevens, for himself and the other defendants, as the highest bidder, for §241; and that was the fair value of the property, and the highest bid heard and known by the auctioneer; although a higher bid may have been made, not loud enough for the auctioneer to hear, or not until the cargo had been knocked off to Stevens; the title to the cargo became thereby vested in them.</p> <p>8. That, if they shall find, that the cargo was fairly knock•ed off to Stevens, as the highest bidder, at the best price which the property was fairly worth in the exposed situation it was at the time of the sale, it would not be the duty of the auctioneer, on a suggestion that a higher bid had been made, which he did not hear, to reopen the sale, and offer the property again for a higher bid.</p> <p>9. That, if they shall find that the cargo was fairly knocked off to Stevens as the highest bidder, for himself and the other defendants, the property thereby became vested in them, and any arrangement which Stevens may have made with Cole subsequent to its being so knocked off, by the payment of a sum of money for the purpose of pacifying Cole, could not invalidate the sale, or deprive the defendants of the benefit of their purchase.</p> <p>10. That if they shall find, that the sale of the cargo to the defendants was invalid by reason of the master’s not consulting the owner, and taking his direction before the sale, and that the absolute title of the defendants thereby fails; and shall also find that the cargo was relieved from its peril and brought into a place of security, and saved by the enterprise, labor, expense and risk of the defendants; they were entitled to a liberal reward out of the property saved; and had the right of possession of the property until their claim to salvage should be adjusted, settled and paid •according to the principles of the maritime law.</p> <p>The presiding Judge gave the second request, substituting for the words “ the earliest use of the ordinary means to convey intelligence,” “ any available means in the power of the master.”</p> <p>The third request was refused, with the remark that it was for the jury to say whether the master exercised á sound judgment and discretion in the matter.</p> <p>The seventh was given with the qualification, that if a higher bid was in fact made, which was known to, or recognized by, the auctioneer, and the sale was reopened or proposed to be reopened, if desired, the property would not vest in defendants.</p> <p>The eighth was given, with the remark, that it was not the duty of the auctioneer on a mere suggestion that there had been a higher bid; but if it was affirmed that there was a higher bid, and he was satisfied of its truth, it was then his duty to reopen the sale.</p> <p>The ninth request was complied with, excepting the qualification, that if the transaction between Stevens and Cole was before the sale was closed, then it was for them to say whether it was not preventing fair competition at the sale.</p> <p>The tenth, for the purpose of the trial, was refused.</p> <p>A verdict was returned for plaintiff, and damages were assessed at $1,00. The jury also expressed an opinion that defendants were entitled to- salvage, but this part of the verdict was stricken out.</p> <p>If the Court should be of opinion, that the defendants had a legal claim for salvage, and had the right of possession of the property until their claim of salvage should be adjusted, settled and paid according to the principles of the maritime law, then the plaintiff was to become nonsuit, and a return of the property ordered; but if they had not the right of possession, then judgment was to be entered on the verdict, unless the presiding Judge erred in refusing or modifying some or any of the requested instructions by the defendants, in which event there was to be a new trial.</p> <p>1. The second request should have been given, without the change made in it by the Judge. Brig Sarah Ann, 13 Pet. 387; 2 Sum. 206; 3 Rob. Admr. Cases, 243; Am. Law Reg. Nov. 1852, p. 48.</p> <p>2. The instructions in the third request should have been 'given; and the remarks of the Judge in refusing to give it, were erroneous. Brig Sarah Ann, before cited.</p> <p>3. The seventh request was sound law and should have been given without the qualification. U. S. Dig. vol. 9, p. 59 ; 1 Louisa. Rep. 11; Long on Sales, Rand’s ed. c. 5, p. 228, and pp. 240 and 245; 2 Kent’s Com.. 2d ed., 531. So also should the eighth request have been complied with.</p> <p>4. The ninth request was proper, as it was proved, that the management between Stevens and Cole, was subsequent to the cargo’s being knocked off to Stevens, as the highest bidder.</p> <p>5. The Judge, in order to settle the facts of the case, withheld the 10th requested instruction, in doing which he erred. Sch. Emulous and Cargo, 1 Sum. C. C. R. 207; The Centurion, Ware’s Rep. 477; Brig Sarah Ann, before cited; 2 Bouvier’s Law Dict. 377, title, Salvors; 2 Saund. Plead, and Ev. 760; Ingraham v. Morton, 15 Maine, 373; The Emblem, Davies, 61; China v. Russell, 2 Blackf. 172; Walpole v. Smith, 4 Blackf. 304.</p> <p>6. The jury have negatived all fraud at the sale, by saying that the defendants should have salvage. Gardiner v. Morse, 25 Maine, 140; Phippen v. Stickney, 3 Met. 384.</p> <p>1. The master had no authority to sell the cargo under the circumstances. 2 Am. Leading Cases, 442; Center v. Am. Ins. Co. 4 Wend. 45; Hall v. Franklin Ins. Co. 9 Pick. 466; Bryant v. Com. Ins. Co. 13 Pick. 543, and 18 Pick. 83.</p> <p>2. It is the master’s duty to use any available means in his power to communicate with the owners. Various phrases have been used by the Judges, but they all express one thing, as appears by the cases already cited. Vid. also Wilson v. Miller, 2 Starkie’s R. 1; Freeman v. East India Co. 5 Barn. & Ald. 617; Petapsco Ins. Co. v. Southgate, 5 Peters, 601.</p> <p>3. When the sale is not justified by the circumstances, it is simply void, and cannot affect the owner’s right to recover. Eaton v. Amer. Ins. Co. 7 Cowen, 582. The facts show that the master could have communicated readily with the owners, either by telegraph or a messenger, and not have delayed the sale one hour. And when there is an opportunity for the owner to act, the authority of the master ceases.</p> <p>4. The sale itself was fraudulent. Auction sales are within the statute of frauds. Until the auctioneer makes his memorandum in writing, the bidder at such sale is not bound. Martin v. Dana, 13 Met. 385; Burke v. Haley, 2 Gilman, 614; Cleaves v. Foss, 4 Maine, 1; Alna v. Plummer, 4 Maine, 258; 2 Starkie Ev. 68.</p> <p>5. No claim to salvage can be set up. In setting-up ownership, the defendants waived salvage. Even a mortgagee or pledgee, when they attach the mortgaged or pledged property, waive their previous claims. Libby v. Cushman, 2 Maine, 429; Brock v. Ingersoll, 11 Met. 232; Paul v. Hayford, 22 Maine, 236; 2 Hill on Mortgages, 20.</p> <p>6. But this is not the proper court to try such questions. Admiralty jurisdiction of salvage cases is exclusive. Brown v. Fair American, 1 Pet. Admr. Rep. 91.</p> <p>7. Besides they have forfeited all claims to salvage by conversón of the property. Salvage is forfeited by embezzlement on the part of the salvors. Sch. Boston and Cargo, 1 Sumner, 328; Hope, 3 Robinson, 215; Brown v. Fair American, 1 Pet. Admr. Rep. 87.</p> <p>8. But even if salvors, they were not entitled to possession of the property. It is not necessary to secure such claim. Dr. Lushington v. Glasgow Packet, 2 W. Robinson’s Admr. Rep. 312. This property was not derelict, and any peculiar rights that attach to salvors of derelict property cannot attach to this.</p>

Bill in Equity to enjoin the defendants from prosecuting certain suits at law, brought by them against the complainant, in the S. J. C. of Washington county, and to compel them to convey a certain lot of land, described in the bill. There was a demurrer to the bill and joinder.

<p>On Report from Nisi Prius, Rice, J., presiding.</p> <p>Trespass, to recover the value of a lot of mill-logs. It was agreed, that the defendants were liable, if the logs were cut within the corporate limits of the town of Wesley.</p> <p>After the evidence was out, it was stipulated, that the full Court should render such judgment thereon as the law required, or grant a new trial.</p> <p>The question involved the true northerly line of township No. 25, in the east division.</p> <p>The territory in dispute is within the Bingham Penobscot Purchase.</p> <p>The plaintiffs relied upon the Act of incorporation of Wesley, and the northerly line of township, No. 25, as run by B. R. Jones in 1828, under the direction of John Black, the agent of the proprietors, and who had before surveyed for him.</p> <p>Before that time there were some settlers on township 25, and in 1828, Mr. Black sent to Jones a sketch of townships in the east divison laid down as in the diagram.</p> <p> </p> <p>The dotted line represents Black’s Road to Machias.</p> <p>With the sketch were these directions: — “Before you lay out any,more lots on Great Meadow Ridge, or on the road leading therefrom toward Machias, it will be well in running some town lines, to ascertain the precise situation of the settlement. You will take your departure from whatever point you think best, but if the line between Nos. 19 and 20 is correct, from that you can easily fix the line between Nos. 25 and 26. Having determined the township lines, and ascertained the position of the great meadow ridge settlement, you will please to lay out some lots for the accommodation of settlers on the ridge, and likewise" on the road laid out toward Machias. You will attend to this business as soon as you can, and when you have finished the job, you will send me a copy of your field book and plan.”</p> <p>Under these instructions Jones testified, that he first found the south-west corner of No. 20, or Crawford, by running from a point about half way of its southerly line where he had before run, and the line was spotted, the corner he was satisfied with; from this corner he run 160 rods, and there found or made a corner for the north-east corner of 25; that there were appearances which satisfied him there was a corner there previously, and from thence he run to the Black road, 526 rods, and was satisfied this was the north line of 25, and it agreed with all the State plans; he run these lines with the greatest care; he did not recollect of spotting it, but might have done so; he did not run this line across the township, and he made a return with plan to Col. Black.</p> <p>Other evidence was introduced by plaintiffs tending to show the recognition of the Jones line.</p> <p>By the Act of incorporation of Wesley in 1833, its northern boundary is thus defined; “ beginning on the east line of township No. 31 in the middle division, at a point two miles north from the north line of township No. 25 in the east division; thence running eastwardly, parallel to said north line to the town of Crawford,” and from thence township 25, east division, is included in Wesley.</p> <p>The defendants relied upon an Act of Massachusetts, passed in 1786, describing the tract of territory designated for lottery townships, and constituting the Bingham Penobscot purchase, and introduced a book containing a copy of the State plan of said tract with all the townships laid down thereon. (No copy of this plan came into the hands of the reporter.)</p> <p>He also introduced one Addison Dodge, whose testimony tended to show, that in 1833 he was sent by Col. Black to run the line between the middle and east divisions, and to mark the corners of the townships on that line; that he found an old corner at the north-west corner of 23, and also one at the north-east corner of 43. At 43 it was marked in 1791 ;■ that he found an old line between 31 and 25 of the middle division, and a corner at the termination of it marked I. P. 1793; that the distances did not vary much from the State plan he had with him at the time; that he made the west line of 27, eight miles, and made a corner; that he run eight miles and 106 rods to the south-west corner of 26, east division; that ho run six miles and 34 rods to the south-west corner of 25, east division; that he.measured five miles and 30 rods to south-west corner of 24, east division.</p> <p>It appeared that the same witness was requested by Col. Black in 1834 or 5, to run out township No. 25, east division ; to find the north-west corner of it, and to add two miles on the north, and run a line parallel to the north line of 25, and if it could not be found, to take the lines he had run previously and run it out. The northerly line run by Jones part way across the township, when run through to the division line, did not correspond to the corner he made in 1833, on that division line. According to his running, from the intersection of the south line of 31, middle division, with the eastern line of that division, to his north line of 25, east division, was two miles and 27 rods, while the State plan made it one mile and 214 rods; and that he made it from the south line of 31, middle division, to northwest corner of 24, east division, four miles and 23 rods, while the state plan made it four miles and 140 rods. The north line of 23, east division, was an old line, and the south lino of 31 middle- division, was an old line. At the northeast corner of 43 was an old monument. He formerly surveyed in the east division, and run the lines on the townships therein, but never found any line run by Peters in the east division, except the ends of the lines upon the division line.</p> <p>It appeared that beyond the north line of Wesley, as claimed by the plaintiffs, there was in No. 26, 14522 acres. In the disputed strip there was 3850 acres, and between the south line of the disputed territory and Dodge’s north line of 25, were 7520 acres. South of the latter line in Wesley was 25695 acres.</p> <p>Much other evidence was in the case.</p> <p>1. The proprietors of No. 25 and adjoining townships had a right to fix the boundaries of that and other townships, to suit their own convenience or pleasure, where it could be done without interfering with rights vested.</p> <p>2. Jones, proprietors’ surveyor, by his letter of instructions of July 8, 1828, was expressly authorized to fix the north line of No. 25, east division, and he ascertained and fixed that line precisely according to the instructions given him by Black, the proprietors’ agent.</p> <p>3. The north line of No. 25, east division, so found by Jones, was afterwards repeatedly recognized by the proprietors as the true north line of that township, and for these .reasons, they are estopped to deny it. Stone v. Clark, 1 Met. 378.</p> <p>4. This line being well known and established, as the true north line of No. 25, east division, at the date of, and for many years prior to the Act of incorporation, the Legislature must be presumed to have intended Jones’ line in such Act.</p> <p>5. By the defendants’ own showing, Dodge was never authorized to run any different line. His doings as to the north line of No. 25, east division, and the north line of Wesley, were wholly sua volúntate and bound nobody. Nor have the proprietors recognized more than partially his surveys or lines.</p> <p>6. It was not competent for the proprietors by subsequently running a different line, even though the first was in any respect erroneous, to change the boundaries of the township as intended and fixed by the Legislature. Nor can they change the locations of the public lots or reservations, authorized and recognized by themselves, especially as other rights have intervened. Brown v. Gay, 3 Maine, 126; Norris v. Hamilton, 7 Watts, (Penn.) 9; 1 U. S. Dig. p. 474, art. 30, 32, 33, p. 477, § 77.</p> <p>7. There is however no reason to doubt that Jones’ survey was correct, and that his north line of No. 25, east division, is the true one. The defendants’ testimony, so far as it is relevant, is controlled and rebutted by their, own acts and declarations.</p>

<p>Without actual occupation of some portion of the premises by the grantee-under a recorded deed, the real owner is not disseized thereby.</p> <p>Under the plea of the general issue, the tenant cannot give in evidence a conveyance by the demandant of any portion of the premises to one under whom he does not claim, and which does not show that the demandant was not seized according to his writ.</p> <p>Where the tenant would disclaim a portion of the premises demanded, it must be made up and filed according to the provisions of- the laws of this State, or it cannot be available. Such disclaimer cannot be incorporated into the plea of the general issue.</p> <p>And if, where a disclaimer was thus incorporated, the demandant recovers the value of more land, without improvements, than he really owned, a new trial could not avail the tenant, as the cause must be tried again upon the same pleadings.</p>

Bill in Equity to redeem a parcel of land. The principles of law involved in this case were determined at a former hearing, 29 Maine, 160, and in the opinion then given, the facts all appear. It now came up on the report of the master appointed at that time.

On Exceptions from Nisi Prius, Appleton, J., presiding. Trespass. The case will readily be understood from the opinion. .Harvey was excepting counsel.

Writ of Entry to recover a parcel of land lying on the northerly end of township No. 20, which was particularly described; and also to recover $3000, for rents and profits and for destruction and waste within six years before the commencement of the action, which was on Aug. 1,1846. At the trial in 1851, the jury not being able to return a verdict, it was agreed to submit the case, upon the evidence admissible, to the decision of the full Court.

On Report from Nisi Prius, Appleton, J., presiding. Assumpsit to recover dividends made upon four shares of the capital stock of defendant corporation; viz. $2 a share, January 28, 1852, and $2,25 per share, January 26, 1853. The action was originally brought before a justice of the peace, and came up by appeal. The general issue was pleaded.

On Report from Nisi Prius, Tenney, J. presiding. Assumpsit. The suit was commenced August 7, 1849, against the defendant, as drawer, on two drafts in favor of ■plaintiff, and accepted by one Manly B. Townsend, payable on Nov. 1, 1846. To one draft no defence was made, to the other, want of notice.

<p>On Facts Agreed.</p> <p>Assumpsit. The writ was dated ou Feb. 16, 1852, and made upon a note signed by defendant, of the following tenor and indorsements.</p> <p>“For value received, I promise to pay Charles Peavy, or order, the sum of eighty-one dollars, and fifty-five cents, on demand with interest. Eastport, Nov. 30, 1830.”</p> <p>On the back of the note was the following: — “Charles Peavey, without recourse. March 7, 1832. Received of the within seventy-five dollars.”</p> <p>Within one year previously to the making of the writ, according to the deposition of D. T. Granger, the defendant went into deponent’s office, in Eastpórt, and he exhibited to him the note, and showed him the amount of it, and the indorsement, and what it would be with and without interest. The defendant made no objection to the note or to the indorsement on it. Hé said the interest amounted to a good deal; that he was a poor man, and unable to pay much; that he thought he ought not to pay any thing more than the balance of the principal of the note, and if Mr. Howe would take that in full, he would pay him that amount. The indorsement of seventy-five dollars, was in the handwriting of plaintiff.</p> <p>The Court were authorized to draw inferences of fact, as a jury might, and enter such judgment as the law and evidence may require.</p> <p>1. The statute of limitations is a defence to this note, unless there was a payment upon the note within twenty years prior to the date of the writ. The indorsement furnishes no such evidence, for it is in the handwriting of the plaintiff. R. S., c. 146, § 23.</p> <p>2. There is no evidence of such payment, The testimony of the witness does not come up to the point required. No payment was admitted, nor does the' case show any such payment to have been made.</p>

<p>The time of the completion of a levy of land, is shown in the return of the officer by the date of his acts and doings in relation thereto.</p> <p>And although he certifies that the levy was completed at a subsequent dattx, when nothing was done or necessary to be done by him to complete it, such certificate is nugatory.</p> <p>If the execution and levy are not recorded till three months have expired from the time the levy was perfected, the title to the land still vests in the creditor as against the judgment debtor.</p> <p>Upon the promise of defendant, who cut grass against the plaintiff’s will, on a piece of land claimed by him, that if the land was his he would pay for the grass on establishing his title, an action is maintainable.</p>

<p>On Report from Nisi Prius, Appleton, J., presiding.</p> <p>Petition for Partition, wherem William Wass, Benj. O'. Coffin, and Lucy S. Coffin, wife of said Benjamin, requested ten fifty-sixths of a parcel of land containing twenty-nine square rods and the dwollinghouse thereon, situated in Columbia, and occupied by Geo. A. Bucknam and Elizabeth Bucknam, the respondents. The boundaries were set forth.</p> <p>At the April Term, 1854, the respondents pleaded that the petitioners were not seized at the time of filing their petition as tenants in common with the respondents of the premises; but that the respondents and those under whom, they claimed had been in the open, exclusive and adverse possession of the same for more than forty years prior to the filing of said petition.</p> <p>In the division of the estate of John Bucknam, who died in 1799, the premises fell, one-half to his wife, and the other half in equal parts to the daughters Mary and Anna. His wife died intestate in 1804, leaving seven children, Mary,, above named, and John, having previously died without issue, intestate. The names of the surviving children were William, Jeremiah, Ichabod, Samuel, Robert, Nathan'and Anna.</p> <p>Ichabod was the husband of Elizabeth, one of the respondents, and the father of the other.</p> <p>Anna, in 1795, married one William Wass, and died in 1809, and her husband also died in 1851, Pour children. were the issue of this marriage, two of whom are the petitioners.</p> <p>On the decease of the wife of John Bucknam, a division of her estate was made in the Probate Court, a record of which was offered in evidence by the petitioners, and received subject to objection, but the full Court rejected it as inadmissible, as it purported to assign a share to one who had long been dead.</p> <p>It was in evidence, that upon his mother’s death, Ichabod assumed the control and management of the premises. In 1811 he built up the cellar wall and rented the premises part of the time; in 1816 he was married and moved upon them and continued to occupy them until his death, in 1846.</p> <p>He frequently let a portion of them by the year, and no one beside Ichabod was ever known to demand or receive any rent. While such was the occupation of the premises, the husband of Anna lived near by, and made no claims at any time; and that from time to time Ichabod repaired and rebuilt the house, overhauling the inside, and re-modelling it in part. And at intervals all through his life he was making changes and.repairs thereon. Some of the minor children lived with him until after his mother’s death.</p> <p>It appeared that Mrs. Coffin was born in 1799, and William Wass, the other petitioner, in Í802.</p> <p>The petitioners also put in, subject to objection, a warranty deed from Jeremiah Bucknam to William Wass and Ichabod Bucknam, of all the heirs’ right to the house and lot belonging to the wife of the late John Bucknam, excepting that part belonging to William in right of his wife. This deed was executed and recorded in 1830.</p> <p>On so much of the evidence as .was admissible the full Court were to decide the cause according to law.</p> <p>1. The evidence shows an actual ouster of the co-tenants-by the “respondents and Ichabod Bucknam, under whom they claim, from 1804 to the commencement of this process. Cummings v. Wyman, 10 Mass. 464, and notes to Band’s ed.; Brackett v. Norcross, 1 Greenl. 91; Ricart v. Ricart, 13 Pick. 253; Angell on Lim. 2d ed. pp. 460 — 468; Prescott v. Nevers, 4 Mason, 326.</p> <p>2. The respondents and said Ichabod having 'been in actual possession for more than forty years prior to the commencement of this action, claiming to hold the premises in his and their own right, the same having* been adverse, open, peaceable, notorious and exclusive, this action cannot be maintained. Stat. of 1848, c. 81, Laws of 1848; Stat. of 1852, c. 240, Laws of 1852.</p> <p>3. There was no such seizin of Anna Wass, the petitioners’ ancestor, and her husband in her right during coverture, as would constitute her husband tenant by the curtesy upon her decease. 4 Kent’s Com. 29, 7th ed.; Jackson v. Johnson, 5 Cowen, 74; 1 Bright’s Husband and Wife, 116.</p> <p>4. Being disseized at her death, the estate in curtesy could not attach to her husband, and no such estate intervened. 4 Kent’s Com. 29, note, 1th ed.; 1 Greenl. Cruise, title v, c. 1, note, § 6.</p> <p>At most it was a right not asserted, and became extinguished by adverse possession. The common law is not changed by R. S., c. 141, § 2, clause 2. Witham v. Perkins, 2 Greenl. 400.</p> <p>5. The petitioner, Wass, might have brought his action for possession in 1823, when he became 21; the petitioners, Lucy S. Coffin and her husband, in 1820, when the disability of infancy ceased, being an infant when the right accrued, the disability of marriage never attached. Wass, petitioner, was therefore barred in 1848, and Coffin and wife, petitioners, in 1840. Witham v. Perkins & al. 2 Greenl. 400; Angell on Lim. p. 523; Roscoe on Real Actions, pp. 498, 505 — 507.</p> <p>6. The deed from Jeremiah to Ichabod Bucknam and Wass, the elder, is irrelevant and inadmissible. Nothing passed by it, as the grantor was out of possession at its date, and Wass was never in under it.</p> <p>1.» The return of the committee appointed to divide the estate of Mary Bucknam, the elder and younger, is void, as it undertakes to assign portions to one many years dead.</p>

On Exceptions from Nisi Prius, Rice, J., presiding. Assumpsit for an alleged breach of tho following contract, made Oct. 1, 1849, between John-Stickney of the first part, John Bridges, jr., Nath’l Conant and Robert L. Bridges of the second part. “ Whereas the persons of the second, part have associated themselves to do business, for the purposes hereinafter named; they having entered into an agreement with Nehemiah Marks, of St. Stephen, to clear out and make navigable for…

On Exceptions from Nisi Prius, Appleton, J., presiding. Assumpsit, on a contract of the following tenor: — The defendants for advances made to them by plaintiffs of -$350, each, agreed in writing to proceed with all possible despatch to the gold diggings in California, there to labor with all diligence and fidelity to get gold in any honest manner for the space of one year from their arrival there.

<p>The parent of a child expelled from a public school, by order of the superintending school committee, can maintain no action against them for such expulsion.</p>

On Exceptions from Nisi Prius, Hathaway, J., presiding. Trespass on the 'Case. This action was brought by plaintiff, through her father, as her prochein ami, against the superintending school committee to recover damages for maliciously, wrongfully and unjustifiably expelling her from one of the town schools in Ellsworth.

On Exceptions from Nisi Prius, Appleton, J., presiding. Assumpsit on a policy of insurance made to the plaintiffs on May 17, 1852, “ on account of whom it may concern, loss payable to them,” on the outfits of schooner Pilot, for a fishing voyage to the “ Banks” and back to port of discharge in the U. S. The writ contained several counts, one of which averred that the insurance would be collected by plaintiffs, as agents and merchants, for owners of said Pilot, to whom the…

<p>©n a question arising between the owners of a water privilege, as to* the alleged use by one of them of a larger share than he is entitled to, and a detriment thereby to the plaintiffs, the Court will not interpose an injunction.</p> <p>Unless the right supposed to be invaded, has been established by law, or been long enjoyed without interruption, or there exists an imperious necessity, such process cannot be invoked.</p>

<p>On Exceptions from Nisi Prius, Hathaway, J., presiding.</p> <p>Assumpsit on account annexed.</p> <p>With other evidence the plaintiff offered his book of original entries and suppletory oath.</p> <p>Among the items charged in plaintiff’s account was one as follows: —</p> <p>“1852, June 13, — To 1 I). C. writ, Stephen Decker v. James Palmer; Joshua Fogg, plaintiff in interest.”</p> <p>The defendant’s counsel objected that the plaintiff’s book, with his oath, was not sufficient to prove that charge, and requested the Judge so to instruct the jury.</p> <p>But he refused and instructed them that such evidence alone was competent to prove that charge and any other of iike character.</p> <p>The verdict was for plaintiff and defendant excepted.</p>

On Report from Nisi Prius, Hathaway, J., presiding. Action on the Case. The ad damnum was laid at #3,000. The writ purported to be served by a constable. At the return term an attorney entered his appearance for the defendant “ specially,” and on the third day of It was stipulated that if the motion should have been allowed, the plaintiff is to become nonsuit; otherwise to stand for trial, as the opinion of the Court shall be as to the legal rights of the parties.

This was a petition for review of an action wherein the respondent was demandant in a writ of dower. The case is reported in Vol. 33, p. 485. The defence in that suit was, that the demandant had relinquished her dower in the premises in a mortgage deed executed by her husband and herself. The loss of it was attempted to be proved, evidence of its contents was admitted, and the case referred to the full Court on report to be decided on the evidence admissible.

On' Exceptions from Nisi Prius, Appleton, J., presiding. Trespass. The parties were owners of two saw-mills in Ellsworth, situated within one or two feet of each other. They derived title from the same grantors, but the plaintiff’s title was the elder, and by his deed was conveyed to him, “ the saw-mill,” &c. It appeared in evidence, that the mills were under different roofs, and had no connection above the bed or floor of the mills.

On Exceptions from Nisi Prius, Appleton, J., presiding. Complaint and search warrant under the first section of c. 48, of the Acts of 1853. The place to be searched was the dwellinghouse of Peter Leach, the defendant, who was alleged to have deposited in his house spirituous liquors intended for illegal sale. The complaint and warrant wore made on Nov. 5, 1853.

On Exceptions from Nisi Prius, Hathaway, J., presiding. Slander, for accusing the plaintiff and one Bedman of robbing Mm of three or four hundred dollars on Sept. 24, 1851. “ One of them held him and the other put his hand in his pocket and took the money out.” The defamatory words were proved.

<p>In a case presented for decision upon facta agreed, no facts, pertinent to the issue, are presumed to exist, which do not appear in the statement.</p> <p>Where the by-laws of an insurance company, being made part of their policies, require the assured, in case of an increase to the risk of the property insured, to notify the officers of the company, or the policy will be void, a neglect to give such notice renders the policy absolutely void.</p> <p>On such, policy, where the risk was increased without nbtice, no action can be maintained for a loss, although the loss did not happen from such increased risk.</p> <p>A subsequent assessment for losses upon such a policy will not revive it.</p>

On Exceptions from Nisi Prius, Appleton, J., presiding. Case, for damages sustained by reason of a defect in a highway in Bangor. The defect was a small hole in a culvert, about four feet from the end of it and about one foot outside of the wheel tracks or ruts. The plaintiff’s horse, being driven by his son, fell into it and broke his log. The plaintiff knew of the defect, but the son did not.

<p>On Exceptions from Nisi Prius, Hathaway, J., presiding.</p> <p>Action op Dower, against the tenant of the freehold.</p> <p>The question was, whether the demandant should have dower in the store built by her husband.</p> <p>The land described in the writ and part of the buildings were conveyed by demandant’s husband, in 1834, to Amos M. Roberts & als. After that conveyance, the demandant’s husband remained in possession and built a store thereon in 1835. At the time of that conveyance, a bond was taken for a re-conveyance of the property on the payment of a sum of money in two years.</p> <p>The Court instructed the jury, that, although demandant’s husband might have a right to redeem said premises at the time the store was built, by virtue of the bond, unless the bond was recorded or defendant had notice of it when he purchased, she could not recover dower in the store, and that the jury in estimating damages would exclude the store. To which ruling the demandant excepted.</p> <p>1. The store having been built after the conveyance to Roberts and others, and while the bond was in force, was subject to dower. This was a mortgage.</p> <p>2. Tho time of the alienation was not until there was a foreclosure or forfeiture of the bond, and the improvements made by demandant’s husband are subject to dower. 4 Kent’s Com. 66, (5th ed.)</p> <p>3. The bond in this case, though unrecorded, was good against the defendant, who is chargeable with notice. The case is like McLaughlin v. Shepherd, 32 Maine, 143, and McKecknie v. Hoskins, 23 Maine, 233.</p> <p>4. But a rule founded in equity, and said by Kent to be “ the better and more reasonable American doctrine,” is, to give the widow her dower according to the value at the time of assignment, deducting all improvements by the purchaser. 4 Kent’s Com. 66, 67 and 68; 3 Mason, 375; 5 Sargeant & Rawle, 289.</p> <p>cited 32 Maine, 143; Thomaston v. Warren, 28 Maine, 298; Brewer v. Machias, 27 Maine, 489; Harpswell v. Phipsburg, 29 Maine, 313; Stowell v. Goodenow, 31 Maine, 539; State v. Shaw, 33 Maine, 556; Curtis v. Kennedy, 3 Met. 405; Emerson v. Hains, 6 Met. 475.</p>

On Exceptions from Nisi Prius, Hathaway, J., presiding. Assumpsit, on a promissory note, payable to a minor, who was under guardianship. The note was indorsed to the plaintiff, by a brother of the payee, also a minor, being authorized by the payee to write his name thereon. Since this suit was commenced, the guardian had approved of the transfer to plaintiff.

On Report from Nisi Prius, Appleton, J., presiding. Assumpsit, to recover balance of an .account. The writ was dated Aug. 21, 1845, and also contained a count for money paid, &c. No items were sued for which accrued after 1841. Copies of the decree of bankruptcy of plaintiffs and of the appointment of G. G. Cushman as their assignee in Feb’y, 1843, were put into the case,-and evidence of the sale of the claim sued for, by the assignee in bankruptcy, to one of the plaintiffs.

On Exceptions from Nisi Prius, Appleton, J., presiding. Assumpsit, on a note of hand signed “ A. P. Kelley^ by W. B. Kelley.” The note was payable to one Knowles, and by him endorsed to plaintiff, before its maturity. The defendant denied the authority of W. B. Kelley to give the note, and introduced him as a witness, and he testified that he had no authority to sign the note, or any note.

On Exceptions from Nisi Prius, Howard, J., presiding. Petition por Review. The petitioners were not inhabitants of this State, and the petition was not indorsed before entry, which was at October term, 1851, order of notice granted October term, 1852, served November 24, 1852, and proved on the 6th day of the January term, 1853.

On Pacts Agreed. Covenant Broken. The defendant, on July 1, 1851, conveyed to plaintiff the east part of lot No. 14, Herrick’s plan, situate in Clifton, by deed, with the covenants of warranty. The incumbrance complained of is certain taxes, alleged to have been due, for assessments upon the land, at the time the deed was executed.

On Exceptions from Nisi Prius, Appleton, J., presiding. Trespass, for .treble damages, under the statute, for cutting timber on land owned by the parties in common. The fabts proved on the trial, appear in the opinion of the Court. By one witness introduced by plaintiff, it appeared that in the winter previous to the cutting complained of in this suit, the plaintiff had given permission to the witness to cut on the same land.

On Exceptions from Nisi Prius, Appleton, J., presiding. Assumpsit, on a promissory note, dated May 9, 1833, payable to Joseph G. Bakeman or order, in two years from its date, for $124, witnessed and indorsed in blank by the payee. It was again indorsed by Lucius Hyde, on May 21, 1849. It was proved, that it was turned out to the plaintiff by Hyde, on a disclosure under the Act in relation to poor debtors, and appraised at $100.

<p>On Facts Agreed.</p> <p>Assumpsit, for supplies furnished to Rhoda White, a pauper.</p> <p>Of the notice and answer no question is raised.</p> <p>The pauper was born in Massachusetts in 1798, and came to her father’s in 1831. He moved into Brewer from Massachusetts, in 1829, and has ever since resided there. The pauper has ever since lived with her father, in that part of Brewer now composing the town of Holden.</p> <p>In the year of 1834, she became idiotic or insane, and so remains. She became a pauper in August of 1834, and has ever since been supported by the town of Brewer, at her father’s house.</p> <p>The town of Brewer was divided in April, 1852, and the easterly part thereof incorporated into a new town by the name of Holden.</p> <p>In the Act of incorporation was a provision for the appointment of a committee by the Commissioners of Penobscot county, to hear and determine upon the matters therein enumerated, which related to the property of the town of Brewer, “ said committee having full power to settle any differences regarding the town property in Brewer, which shall belong in proper proportion to the town of Holden, the amount of iponey to be paid, and the time when it shall be paid, and also determine all privileges and burdens, that justice may be done between said towns?</p> <p>That committee heard and determined the matters submitted to them, and in relation to the paupers belonging to the old town of Brewer determined “ that the said new town of Holden shall assume all such as acquired an absolute settlement on the territory now within the incorporated boundaries of , said Holden, excepting Bhoda White, whom, together with all other paupers for the support of whom said old town of Brewer were legally liable, the said new town of Brewer are to assume.”</p> <p>The inhabitants of Brewer, contended, that the committee had no such power and refused to support the pauper.</p> <p>If, under this statement of facts, the support of said pauper legally devolves upon the town of Holden, the plaintiffs are to become nonsuit, otherwise a default is to be entered.</p> <p>That the support of the pauper was a “burden” imposed upon the town, as much so as the payment of money for any other purposes,,is indisputable. The literal interpretation of the Act unquestionably gives to the committee the power which they have exercised.</p> <p>Why should not this be held the legal interpretation of the Act ? The only reason for the negative, that has been given, is, that the case of paupers’ settlement, in division of towns, is provided for in the general pauper law, and it was not the intention of the Legislature to change the general law by this special Act.</p> <p>To this view of the case, which in fact is the only question of the case, it is answered —</p> <p>1. That if the case is provided for by the general law, yet •there is nothing to prevent the operation of a special law on the same subject changing the operation of the general law.</p> <p>The insertion of a special provision for the support of paupers, in case of division of towns is very common and indeed most usual, yet the Court have never hesitated to give full effect to such special provision, however much it may be in derogation or opposition to the general enactment. Norton v. Mansfield, 16 Mass. 48; Bloomfield v. Skowhegan, 16 Maine, 58; Belgrade v. Dearborn, 21 Maine, 334; Winthrop v. Auburn, 31 Maine, 465.</p> <p>2. The case is not provided for in the general law. It is claimed to be embraced in the provisions of c. 32 of the R. S., §1, clause “ fourth.” It is very clear, however, that the provisions of the enactment do not embrace this case.</p> <p>Here the pauper never “ had a legal settlement” in Brewer; nor was she “ absent at the time of the division,” therefore she does not come within the first paragraph. Mt. Desert v. Swanville, 20 Maine, 343.</p> <p>Neither does she come within the description of paupers provided for in the last paragraph, inasmuch as she never was “ legally settled” in Brewer, nor had she “ begun to acquire a settlement therein” inasmuch as she had been a pauper ever since the time of her first falling in want up to the time of the new incorporation. 20 Maine, 341. And besides, the .provision in such case is not, that sueh person shall have a settlement in the new town, but only “ the same rights 'in the new town, in relation to settlement, whether incipient or absolute, as he would otherwise have had in the old town where he dwelt.”</p> <p>The case then falls clearly without the provisions of the section and cannot be affected by them. For no person, under those provisions, could gain a settlement in the new town, unless he then had a settlement in the old town. New Portland v. Rumford, 13 Maine, 299; New Portland v. New Vineyard, 16 Maine, 69; Sutton v. Dana, 4 Pick. 117.</p> <p>This case not being provided for in the general law, affords a strong argument in favor of the position assumed as to the authority of the committee.</p> <p>3. But if we are in error in this assumption, what is the effect ? The pauper follows the general law.</p> <p>But by the general law, where a new town is incorporated from an old town, as is the case here, the old town retains all the property and effects and is chargeable with the debts and burdens belonging to it. No part of these pass to the new town, except so far as they are made to do so by the Act of incorporation. Windham v. Portland, 4 Mass. 384—9.</p> <p>The only exceptions are those falling within the “ fourth” clause already cited, and the burden of the support of the pauper is upon Brewer. Smithfield v. Belgrade, 19 Maine, 390.</p> <p>The committee were unauthorized to throw upon Brewer the support of the pauper, who belonged to the town of Holden. The laws as to the support of paupers existed, and they had no authority to change them.</p> <p>The “ burdens” in the Act of incorporation, do not imply any future liability, but only liabilities and indebtedness already existing. They referred to the town debts and contracts then existing.</p> <p>If the committee had any authority on the subject of future support of paupers, it certainly extended to any contingency under that head; and they could have gone on and decided that Brewer shall support all persons now having residence in the territory of the two towns, whoever of them shall ever become a pauper. If burdens could cover what was not in existence, the committee could have gone on legislating ad infinitum.</p> <p>If the pauper has no settlement, she belonged to neither town, and Holden must take her territory with all its incidents, its fields, its woods, minerals, and whatever else they find upon it; and. finding this Rhoda upon her lands, what will they do with her ? They say she has no settlement with them. But they cannot call on Brewer, because neither has she a settlement with us. It is their misfortune, and they must take care of her. R. S., c. 32, § 46.</p>

On Exceptions from Nisi Prius, Appleton, J., presiding. Assumpsit, on an account annexed. The defendant filed an account in set-off. He relied on his set-off, and offered his book of entries with his suppletory oath. It appeared that he could not write, and that the book had been kept regularly every day by his wife, by his direction. The evidence was objected to and excluded. The defendant then offered said book, with the suppletory oath of his wife, which was excluded.

On Report from Nisi Prius, Appleton, J., presiding. Complaint, for forcible entry and detainer, brought to recover possession of the New England House and lot in Bangor. The complaint was directed to the judge of the police court of Bangor, and sworn to before a justice of the peace and quorum for the county of Lincoln in which thg complainant resided.

On Exceptions from Nisi Prius, Hathaway, J., presiding. Assumpsit, upon a note of the following tenor: — “ St. Albans, 9th October, 1846. “Eor value received I promise to pay Charles B. Ellis or bearer thirty dollars, in one year from date, with interest. “ Attest, Amasa B. Lothrop.” “ Seth Emery.” The plaintiff introduced the subscribing witness, by whose testimony it appeared, that one William H. Snell came into the defendant’s house, who was then absent, and asked his…

<p>Tta legal owner of a vessel, no'i in his possession or under Jus management, is not responsible for repairs, procured by one having the entire control thereof.</p>

<p>Petition for writ of certiorari.</p> <p>A petition was presented to the Commissioners of Penobscot County at their August term, 1851, for the location of a county road, commencing in township No. three, in the fifth range of townships, on the Aroostook road, near the school-house in district No. one; thence westerly across township No. three, in the sixth range, and township No. three, in the seventh range, to the east branch of Penobscot river, near the house of W. H. Hunt, jr.</p> <p>On this petition a hearing was ordered, and that the Commissioners “meet at Patterson’s tavern, in No. 3, Aroostook road, on Wednesday the 28th of January next, at 10 o’clock, A. M., and thence proceed to view the route mentioned in said petition, immediately after which view, a hearing of the parties and witnesses will be had at some convenient place in the vicinity, and such further measures taken in the premises as the Commissioners shall judge proper, and that notice of the time, place and purposes of the Commissioners’ meeting aforesaid, be given to all persons and corporations interested, by copies, &c. on the chairman of the County Commissioners of Aroostook county, and by publishing the petition and order in one of the papers printed in Bangor, the first publication thirty days before the time appointed, and by publication in the Age, six weeks successively, the last publication thirty days before said view, that all persons,” &c.</p> <p>The Commissioners of the two counties mot, and agreed to lay out the road prayed for.</p> <p>Afterwards the Commissioners of Penobscot surveyed and marked the road in Penobscot county, and adjudged “that township No. 3, in the sixth range, and No. 3, in the seventh range will be enhanced in value, each of them, by the laying out and establishing the road prayed for, to the full amount of the cost and expense of opening and making said road in each of said townships, and said Commissioners adjudge, (the owners being to them unknown,) that the proprietors of said township No. 3, in the sixth range, shall pay the whole amount of the cost of opening and making said road in said township, being in the judgment of the Commissioners, proportionate to the value and benefit likely to result to said township.”</p> <p>The copies of the records exhibited did not show at whose expense the road across township No. 3, in the seventh range, was to be built.</p> <p>The petitioner, at the time of said application was, and still is, the owner of one half of the latter township. The Commissioners were about assessing taxes upon the same for the building of the road.</p> <p>Several errors in the proceedings were alleged, among which were: —</p> <p>1st. That the Commissioners did not cause notice of the time and place of the view to be posted up in three public places in the towns through which said route passed, or to be served on the clerks of said towns.</p> <p>Sd. That no notice was ordered or given of any place at which parties and witnesses might be heard in opposition to said petition and road; nor was any such place appointed by the Commissioners; nor does it appear by the record, at what place the hearing was had.</p> <p>7th. That as appears by the records, the Commissioners of Penobscot county adjudged that the proprietors of township No. 3, range 7, shall pay the whole amount of the cost of opening and making said road in said township, being an uncertain amount, and not a fixed sum as the law requires.</p> <p>cited c. 196, § 1, of laws of 1841; Pingree v. County Commissioners, 30 Maine, 351.</p> <p>cited c. 25, § 23, and c. 196, § 1, (1841,) and contended that the required notice had been given. They also cited 4 Mass. 565; 11 Mass. 417; 1 Met. 122; 19 Maine, 338; 23 Maine, 9; 24 Maine, 406.</p>

Bill in Equity, to which the respondent filed a general demurrer. The bill alleged, that on the 10th day of April, 1835, Luther Dwinel, Albert Tibbetts and Jefferson Sinclair, gave to one M. P. Norton, their six notes of hand for $10359,38, payable in one, two and three years, with annual interest; and to secure the payment thereof mortgaged to him one-half of Township No. three, in the seventh range from the easterly line of the state in the county of Penobscot.

On Report from Nisi Prius, Appleton, J., presiding. Assumpsit on a draft of the' following tenor: — “$1200. Franklin, Nov. 24, 1841. “ Thirty days after date, for value received, pay to the order of Geo. W. Cutter, twelve hundred dollars and charge the same to account of owners of barque Cleona. “Yours respectfully, Geo. W. Cutter & Co. “To Francis Cox, Esq., Merchant, 66 Commercial Street, Boston.” Indorsed, “ Geo.

<p>In equity proceedings under the Act of April 9, 1852, no questions of law, not arising out of the facts found by the Judge at Nisi Prius, can be raised or entertained by the court of law.</p> <p>When the respondent is attempting to enforce the rights of an owner of the laud in controversy, he may be required to release all his claims thereto, although he may have previously conveyed the same to a third person.</p> <p>In cases under this Act, the facts found by the presiding Judge are cqnclusive and cannot afterwards be changed by a report of the evidence Horn which they are drawn.</p> <p>If the conclusions of the presiding Judge upon the cause before him, are to be controverted in the court of law, it can only be done by reporting the facts, not the testimony tending to prove them.</p> <p>If the conclusions of the presiding Judge upon the cause before him, are to be controverted in the court of law, it can only be done by reporting the facts, not the testimony tending to prove them.</p>

On Exceptions to the rulings, Appleton, J., January term, 1853. Bill in Equity. This case was before the Couit in 33 Maine, 321, when a master was appointed to find the sum due' on the mortgage. The sum tendered by complainant on July 18, 1849, was $525.

Bill in Equity, for a specific performance of a written contract. The Facts were Agreed. The plaintiff’s intestate and James B. Fiske, the defendant, entered into a written contract with each other, under seal, on April 14, 1849, in which the defendant agreed to procure a good and sufficient deed for plaintiff of a piece of land described therein, on the payment of certain notes by him given for $455.

On Exceptions, Hathaway, J. Trespass on the Case for a conspiracy in commencing a prosecution and abuse of legal process. Defendants severally pleaded tbe general issue. Plaintiffs were owners of the steamer Boston, running between Bangor and Boston and touching at tbe intermediate ports. On tbe third day of Dec. 1851, tbe Penobscot river being closed with ice, tbe boat was expected to stop at Frankfort, where defendants lived.

<p>It is provided by \ 10, c. 205, of the Acts of 1846, that no action can be maintained upon any claim, whether it be by note or account, in whole or in part for spirituous or mixed liquors, sold in violation of that Act.</p> <p>In a suit upon an account, some of the items of which are for spirituous liquors sold in violation of that Act, the plaintiff may, at the trial of the action, amend his bill of particulars, by striking out the items for liquor, and recover on the account as thus amended.</p>

On Report, Hathaway, J., presiding. Trespass. Elea, general issue. The declaration contained one count only, and alleged an assault and battery and imprisonment for one day, and by means of the false imprisonment defendant compelled the plaintiff to pay §20. It appeared, that defendant was a justice of the peace, and four actions were tried by him on one day against the plaintiff, in which judgment was rendered against him.

<p>On Exceptions from Nisi Prius, Appleton, J., presiding.</p> <p>Assumpsit, for labor.</p> <p>The defendant offered testimony tending to show, that the conduct of plaintiff was so bad, that he was obliged to discharge him.</p> <p>Defendant requested the instruction, that if plaintiff hired by the month for a term, and his conduct was so bad while in his employ, that defendant was justified in discharging him before the time was out, that the plaintiff could recover his wages at the contract price, deducting what damage his leaving before the time was out, would cause the defendant.</p> <p>This request was refused, and the jury were instructed, that in such case the plaintiff would recover what his labor was worth, for the actual value of his services while he labored; not to exceed in any event the contract price.</p> <p>To this refusal and instruction defendants excepted.</p> <p>cited Miller v. Goddard, 34 Maine, 102; Frazier v. Cushman, 12 Mass. 277.</p> <p>cited Abbott v. Hermon, 7 Maine, 118.</p>

Exceptions from Nisi Prius, Tenney, J., presiding. Trover. The defendant justified the taking of the goods declared for, as an officer on a writ in favor of one Lincoln v. H. G-. O. Weston, and that they were the property of Weston. The plaintiff introduced three bills of sale from Weston to himself, dated respectively the 10th, 12th and 18th of April, 1848. The note declared on, in writ Lincoln v. Weston, was dated April 20, 1841, and was payable in one year from date.

<p>On Report, Hathaway, J., presiding.</p> <p>Petition nor Partition.</p> <p>This case was before the Court, (33 Maine, 311,) when partition was ordered and commissioners appointed. Their report was subsequently offered for acceptance, when Calvin'Copeland, one of the respondents, filed objections: —</p> <p>1. Because Lysander Cutler, Caleb B. Curtis and Jonas Wheeler were appointed commissioners and commissioned in due form of law, and at a subsequent term Paschal Abbott was appointed by said Court instead of said Cutler, but no commission under the seal and attestation of said Court ever issued, directed to said Paschal Abbott.'</p> <p>2. Because the said commissioners set off and assigned to said Parsons, property of which Calvin Copeland was sole seized in fee, and in which the petitioner had no seizin nor possessory right.</p> <p>3. Because the commissioners set off as real estate personal property belonging to said Copeland, to wit, machinery connected with a woolen factory, consisting of looms for weaving, carding machines, bands, water-wheel, fulling stocks and* boilers, together with other personal property generally found in a woolen factory.</p> <p>The petition for partition was entered at the October term, 1849, and described the entire premises of the tenants in common, containing five acres, and all the privileges and appurtenances to the mill or. factory privilege, and claimed, that the petitioner was owner in fee of twenty-three six hundred and twenty-fifth parts of the premises, and that the same might be set off in severalty.</p> <p>At the October term, 1852, an interlocutory judgment was entered, the commissioners were appointed and their warrant issued, but one of them having declined, Paschal Abbott was appointed in his place, and the same was certified on the warrant by the clerk.</p> <p>The return of the commissioners set forth particularly their doings in complying with their warrant.</p> <p>Evidence was introduced showing, that Calvin Copeland in 1850, built a dye house near the factory without a cellar. In it was a copper kettle, iron kettle, washers, fulling stocks, press and shafting. A dry house also was built by him, at the same time, standing on blocks, and the year following a wood house.</p> <p>In estimating the value of the entire property the commissioners included the preceding, but none of it was set off to plaintiff. In the part set off was a portion of the machinery, consisting of looms, carding machines, belts and wheels by which the woolen factory was operated.</p> <p>All the papers used in the former trial were presented, and the Court were authorized to render judgment according to the legal rights of the parties upon the evidence admissible, the parol evidence being objected to.</p> <p>cited 12 N. H. 205; 4 Pick. 311; 9 Conn. 63; 14 Mass. 352; 4 Metc. 306; 17 Johns. 116; 20 Wend. 636, and the case of Seaff v. Hewitt & al. Ohio R. Jan. term, 1853, and particularly the comments of the Ohio Court upon the case of Farrar v. Stackpole, 6 Greenl. 154. He cited also 2 Watts & Serg. 116.</p> <p>1. There was no error in the commission, and if so it was amendable. 3 Greenl. 29; 10 Maine, 278; 26 Maine, 411; 23 Maine, 251.</p> <p>2. The store house and land was common propérty.</p> <p>3. The property set off was real estate. All the machinery and buildings have become a part of the realty by accession. The property to be divided was settled by the interlocutory judgment. The construction given to the language of the warrant by the commissioners has been well settled in this State. Farrar v. Stackpole, 6 Greenl. 154; Trull v. Fuller, 28 Maine, 545; Corliss v. McLaughlin, 29 Maine, 115.</p> <p>The same principles of construction apply to a levy as to a deed. Waterhouse v. Gibson, 4 Greenl. 230; 2 Kent, 346.</p> <p>In Massachusetts the law is the same. Winslow v. Mer. Ins. Co., 4 Metc. 314; Butler v. Page, 7 Metc. 40; 8 Metc. 26; 19 Pick. 314. The same view is taken In Pennsylvania. Voorhis v. Freeman, 2 Watts & Serg. 116; Gray v. Holdship, 17 S. & R. 415. In New Hampshire such is the law. Despatch line of Packets v. Bellamy, 12 N. H. 205; Powell v. Monson, 3 Mason, 466.</p>

Bill in Equity to redeem an estate mortgaged. The defence was, that the mortgage had been foreclosed. The complainant being seized in fee of a tract of land in Carmel, on Oct. 9, 1841, mortgaged the same to A. K. Gardiner of New York, to secure certain notes which have not been paid.

On Facts Agreed. Assumpsit, on account annexed for sundry liquors and ■cigars, amounting to $134,00. The plaintiff resided and kept a store in Boston, Hassachusetts. The defendant’s testator kept a public house in Corinth in the county of Penobscot, with one Alanson Carey.

<p>Where the plaintiff was jointly interested with another in a bond for the conveyance of real estate, the conditions of which had been fulfilled, and his assignee in bankruptcy, under a license, had sold his interest to defendant, who had obtained a deed from the obligors, and plaintiff claimed that his interest in the bond had been previously assigned as security to a creditor, (from whom he derived a subsequent title,) and that no right in the bond had vested in his assignee in bankruptcy; unless his bill, seeking to compel a conveyance of such half, sets forth the assignment to his creditor to have been perfected before his petition to be decreed a bankrupt, it cannot be maintained.</p>

On Pacts Agreed. Trover for a watch of the value of $25. The plaintiff was a dealer in watches and jewelry, and in Dec. 1852, was the owner of the gold watch alleged to be converted by defendant. On that day, one M’Clure, representing himself to be the owner of a silver watch, proposed an exchange for the gold one with one of plaintiff’s clerks. The trade was perfected. The silver watch had been stolen by M’Clure, and the. owner subsequently obtained it of plaintiff.

On Report from Nisi Prius, Appleton, J., presiding. Trespass quare clausum. The parties are owners of the north and south portions of the same lot. A four rod strip between them was claimed by both parties, and on this strip was the alleged trespass. The title of the plaintiff through mesne conveyances, was derived from John Amory to one Thomas Allen, by his deed of March 19, 1832.

On Exceptions from Nisi Prius, Appleton, J., presiding. Trover, for the conversion of “ one hundred sticks of pine timber, to wit, thirty tons.” No question arose as to the title or conversion. One Lewis was the partner of defendant at the time the cause of action accrued, and was the principal actor and jointly liable for the conversion.

<p>By the common law, fixtures and permanent improvements of the freehold, made by a tenant for life, or for years, are part of the realty, and descend to the heirs of the estate.</p> <p>But when made for Ms own use, by a tenant at will, or for a term certain, by consent of the landlord, they remain tlas personal property of tbe tenant, and at bis decease, constitute a part of his estate.</p> <p>A tenancy by curtesy is created by operation of law, and no buildings erected upon the estate by such tenant by consent of the wife, will thereby •become personal property. The law takes away her power to contract with her husband.</p> <p>And fixtures ereGted by such tenant become part of the realty.</p>

<p>Before trial it is matter of discretion in the Court whether an indictment shall he quashed for alleged defects.</p> <p>After verdict a nolle pros, may he entered as to any part of the count in an indictment, whereby the charge is made less criminal.</p> <p>Judgment will not he arrested heeause some of the counts are had for duplicity.</p> <p>Several and distinct offences of the same nature may he set forth in different counts of the same indictment.</p>

Bill in Equity. The nature of it sufficiently appears in the opinion. A general demurrer was filed to the bill, and the causes assigned were; — 1. That it was multifarious. — 2. The statute gave no jurisdiction in such cases, and 3, That no facts were stated which shew it to be one of trust. The causes of demurrer were fully argued by —

On Exceptions from, Nisi Prius, Appleton, J., presiding. Trespass. The defendant, as sheriff, attached certain goods upon a writ against one E. H. Swett. The plaintiff claimed them by a mortgage duly recorded, before the attachment. On the trial, plaintiff used the deposition of said Swett, .and defendant called two witnesses as to the declarations of Swett, after the mortgage was recorded, that it was only made for a cover to keep his business along; that it was only a sham.

<p>An attorney at law is not permitted to disclose the communications made to him by his client, without his consent.</p> <p>And declarations made to an attorney with reference to his employment in the cause fall under the same privilege, although the attorney declines the engagement.</p> <p>The declarations of a person, competent to be a witness, assigning the reasons for not doing a certain act, are no part of the res gestee, and inadmissible.</p> <p>'Where an action was commenced and referred to referees, and their proceedings were set aside as void, in a subsequent suit for the same cause, the records of the proceedings under the referees are immaterial and may properly be rejected.</p> <p>The date of a writ is prima facie evidence of the time it was actually made.</p> <p>In an action against a town for an injury caused by a defective highway, no interest can be added by the jury to the sum found as damages.</p>

On Report from Nisi Prius, Hathaway, J. presiding. Trover, to recover the value of thirteen swine. The defendant pleaded the general issue, and filed a brief statement justifying the acts complained of, as pound-keeper of the city of Bangor.

On Report from Nisi Prius, Hathaway, J. presiding. Assumpsit, on account annexed for two horses, and for a note paid by plaintiff. There was also a count for money had and received. The defendants purchased of plaintiff a span of horses, and paid therefor by an unnegotiable note running to one of defendants, which was represented to be due and that it would be paid at maturity.

On Exceptions from Nisi Prius, Hathaway, J., presiding. Indictment for neglect of keeping highways in repair. A verdict was rendered against the defendants, and before judgment, they moved in arrest, for the reason that another and different indictment for similar neglect was found against them at the same term when the present indictment was found. The motion was overruled and defendants excepted.

The facts in the case were agreed. James Stinson, being the owner of certain real estate, on Jan. 21, 1853, leased a portion of it, under seal, for the term of ten years, the rent thereof to be §3200, payable yearly, in payments of §320, the first .payment to be made Aug. 1, 1853. In March of that year the lessor died. His personal estate, as inventoried, was valued at §3105. Among these items was the above lease, appraised at §2048.

On Eapts Agreed. Debt, on a poor debtor’s relief bond. The principal defendant cited the plaintiff before two justices and disclosed one clock, and an execution in his favor of §20; and no appraisal was made of the demand. No-oath was administered to the debtor to make true answers,, until after the disclosure was reduced to writing and signed by him.