Volume 39 — Maine Reports

Oh ExceptioNS from Nisi Prius, Appleton, J., presiding. Debt on a poor debtor’s relief bond. In defence, the record of two justices of the peace and quorum, certifying that the principal debtor had made a disclosure and been admitted to the oath prescribed by law, was read in evidence.

ON FACTS AGREED. Appeal from a decree of the Judge of Probate for Penob-scot County. The defendant represents the estate of Erastus Learned, deceased, and the appellant that of Enoch Brown, deceased, who was a creditor of defendant’s intestate. Learned died in 1836, and administrators were appointed of his estate.

ON EXCEPTIONS from Nisi Prius, Appleton, J., presiding, and on motion for a new trial. Replevin, for a horse. It appeared that the defendant and others bantered the plaintiff about his horse. He asked the defendant what he would give him for the horse, to which the reply was $40.

ON Report from Nisi Prius, Hathaway, J., presiding. Writ op Entry. Plea, nul disseizin. The plaintiff introduced a recorded deed from one Levi Green to himself, dated in 1827, of the demanded premises. The tenant claimed title by a levy of an execution in his favor against John A. Whitcomb, the attachment on the writ having been made April 9, 1852.

Ox Exceptions from Nisi Prius, Hathaway, J., presid-mg- Wbit oe Doweb. The tenant pleaded that demandant’s husband was never seized of the premises. The land formerly belonged to one Sullivan and by some arrangement between Mm and demandant’s husband, William Mann, the latter went into the possession of it some years prior to 1835. Mann being poor employed a relative ■to pay for it, to whom the deed was made.

On Report from Nisi Prius, Shepley, C. J., presiding. Trespass quare clausum fregit. The Court were authorized to draw such inferences from the testimony admissible as a jury might, and to enter a judgment according to the rights of the parties. The Court found the premises, at the time of the alleged trespass, to have been in the possession of one Ross, who was tenant at will of the plaintiff.

Ok EXCEPTIONS from Nisi Prius, Bioe, J., presiding. Tbespass for taking certain personal property belonging to plaintiff.

<p>ON REPORT from Nisi Prius, Shepley, C. J., presiding.</p> <p>Action on the Case to recover of defendant, as a stockholder of the Buckfield Branch Railroad Corporation, the amount due to the plaintiff on a judgment recovered against the corporation.</p> <p>The Court were authorized to draw such conclusions as a jury might, and enter judgment by default or nonsuit, as the facts and law should warrant.</p> <p>A copy of the judgment, execution and officer’s return thereon were introduced and evidence that defendant was a stockholder, also the act of incorporation and the records.</p> <p>The objections made to the plaintiff’s recovery are all stated in the opinion.</p>

Exceptions from Nisi Prius, Howard, J., presiding. Trespass for a quantity of hay. Defendant claimed title to it. The plaintiffs, to support their title, called one Sylvanus Poor, and also offered the deposition of one John Abbott. Both belonged to the board of trustees and the testimony was rejected for that cause.

ON Report from Nisi Prius, Wells, J., presiding. Assumpsit, for the amount of one hundred dollars, the alleged value of a share in plaintiffs’ company, upon defendant’s subscription to their capital stock.

<p>The construction of a mitten contract devolves upon the Court and not on the jury; but if left to the jury and they decide correctly, exceptions for that cause -will not avail.</p> <p>A promissory note given for a specific sum, for a cow, in which it is stipulated, that the cow shall remain the property of the promisee until the note is fully paid, is in the nature of a mortgage, and the promisee, where there is no provision to the contrary, is entitled to the possession of tho property until the note is paid.</p> <p>And where such a note and contract wore made for security only of tho payment of another note by the same maker, for a yoke of oxen, which note contained a similar provision as to the oxen, the talcing possession of the oxen by the promisee, before the time for their payment had elapsed, although they were of the full value of the note, will not discharge his right to the possession of the cow, before the maturity of tho notes.</p>

Petition for tbe writ of certiorari. The petitioner was a creditor in an execution against tho defendant, on which he had disclosed before two justices of the peace and quorum, and taken the oath prescribed by law. The errors assigned were that no notice was left as certified by the ofiicer at the place specified in his return, nor had the creditor or his attorney any notice in fact or in law, of the time and place of the debtor’s disclosure.

On Exoeptions from Nisi Prius, Howard, J., presiding. Indictment, charging defendants with an assault with a drawn sword upon one Ivory Pray, with the intent feloni-ously and of their malice aforethought, him the said Pray to kill and murder.

On Exceptions from Nisi Prius, Howard, J., presiding. INDICTMENT against Daniel Scannell and others for an assault with a dangerous weapon upon one Alexander Lewis Maxwell, with intent him to kill and murder. A motion was made by Scannell for process to summon his witnesses, and at the expense of the State, which was denied.

<p>On Exceptions from Nisi Prius, Howard, J., presiding.</p> <p>Indictment.</p> <p>The facts are stated in the opinion.</p>

ON Repout from Nisi Prius, Howard, J., presiding. Assumpsit. The writ contained a count upon a note of hand dated Jan. 5, 1850, for $100, with interest. There was also a count upon an account annexed, and the common money counts. The signature to the note was admitted to be genuine, but it was contended at the trial that the note had been materially altered since it was signed, without the knowledge of the defendant.

At the March term, 1854, the prisoners were tried before Shepley, C. J. on an indictment as follows: — “STATE OF MAINE. “ CUMBERLAND, ss. —… Held: the said Thomas Guiner, in and upon the front and upper part of the head of him, the said Thomas Guiner, then and there feloniously, wilfully and of their malice aforethought, did strike and beat, giving unto him, the said Thomas G-uiner, then and there with the said dangerous weapons, to wit, with the said wooden clubs, of the…

This was an action on tbe Case for false and fraudulent representations alleged to have been made to the plaintiffs by defendant, by reason of which they gave credit to one Heycock on April 25, 1853. The cause was tried before Shepley, C. J., and a verdict rendered for defendant, and exceptions taken to the rulings and instructions of the Judge.

<p>It is provided by law tliat no contract for the sale of any goods, wares or merchandize, for the price of thirty dollars or more, shall be allowed to be good, unless the purchaser shall accept part of the goods so sold, and actually receive the same.</p> <p>Where the defendant verbally agreed for a cargo of coal, of a certain kind, at a price fixed per ton, the plaintiffs to procure a vessel in which to transport 'it to him, and the coal was not received on account of the vessel being' wrecked; in a suit for the price, it was held that there must be an acceptance as well as delivery, and that the action could not be maintained.</p>

Ok EXCEPTIONS to the ruling of Howard, J. This was an action on a contract. The service of the writ was by an arrest of the body of defendant. Upon the back of the writ was a certificate of a justice in these words: — “ Cumberland, ss. August 2, 1854.

ON Exceptions from Nisi Prius, Howard, J., presiding. Report oe Referees. Two of these cases, viz. William Mayberry v. Benjamin Morse, and Stephen P. Mayberry v. Benj. Morse & al., were referred under a rule of Court to the same referees. The other case of William Mayberry v. Benjamin Morse, was a submission entered into before a justice of the peace and before the same referees.

EXCEPTIONS from Nisi Prius, Sheplev, C. J., presiding. Indictment against the defendant for being a common seller of spirituous liquors, under c. 211 of Acts of 1851, between September, 1853, and November, 1854. Testimony was introduced that be sold such liquors to one Owen on three different days in October and November, 1854. Also to one Orosman about the 10th or 12th of February, 1854.

<p>A failure to pay the debt secured by a mortgage at the time it is due, will, in a suit in equity, interpose no obstacle to a redemption by the mortgager according to the statute, although a provision is incorporated into the mortgage that the mortgagee shall hold the land free from the right of redemption, if the debt is not paid at maturity.</p>

<p>The inhabitants of a town or city, haying reasonable notice of a defect in one of their highways, are liable for any injury arising therefrom after it is constructed and opened for travellers, although the time in which they were allowed to build it after its acceptance had not elapsed.</p>

<p>On Exceptions from Nisi Prius, Shepley, C. J., pro- . n’ 1 1 r Siding.</p> <p>Assumpsit to recover the value of a quantity of millinery goods, delivered to defendant’s wife while living with him, at sundry times in 1852-3. The amount due plaintiff was $465,67, and the evidence tended to show that the goods were delivered to the wife with the knowledge and consent of defendant, and that defendant had received benefit from a portion of the proceeds of such goods thus bought and sold by the wife, some going to the support of his family, and some to repairs of his house, and that he had made one payment to plaintiff on account of these purchases and then promised to pay more, and had at different times exercised acts of ownership over the goods, and had mortgaged them as his own.</p> <p>There was other evidence tending to show that plaintiff gave credit to the wife alone.</p> <p>The jury were instructed, that under our laws the wife, living with husband, might carry on. business on her own account, distinct from her husband; that he might have knowledge of the same, and even aid her in the business, as her clerk or otherwise, and yet it may be her business and he would not be chargeable; that she might make sales and purchases, and contract with reference to such business as a feme sole could, and if carrying on business upon her own account and credit, though with the knowledge and assent of the husband, the property by her purchased would be her property and not his, and she would be liable for the purchase made, and not the husband; but if he authorized her to contract on his account, then he would be liable; that, if she was carrying on the business upon her own account and credit, she would have the right to apply the proceeds as she pleased, to the support of his family or otherwise, and it would not charge him; and that it was for the jury to consider, whether the wife did the business and made the purchases upon her own account and credit, or upon the account of the husband.</p> <p>If upon her account he would not be liable, but if upon his account with his consent he would be.</p> <p>A verdict was returned for defendant, and plaintiff excepted.</p>

<p>Where the share of one of the heirs in Ms father’s real estate was attached and levied on by the administratrix, a subsequent petition for partition by the other heirs, to the judge of probate, and a division of the estate thereon among all the heirs, is not a waiver of the levy. The heirs had no legal interest in the land levied on that could be waived.</p> <p>Under the Act of 1817, c. 190, the judge of probate had full power, in such cases, to make a division among the heirs.</p> <p>By the Act of Feb. 11, 1789, § 3, all lands levied on by the administrator, were held to the sole use and behoof of the widow and heirs of the deceased, and could only be distributed by the judge of probate as personal estate.</p> <p>The heir whose interest in real estate was thus taken, under that Act had no right to a partition of such share in the real estate, nor could he convey any such right to another person.</p> <p>Where it is agreed that all the right of an heir to an estate passed by levy to the administratrix, such heir has no right remaining in that set-off as dower.</p>

ON EXCEPTIONS from Nisi Prius, Howard, J., presiding. Assuiipsit for goods sold and delivered. The defendant’s wife kept a millinery establishment at Augusta, and she contracted for the goods sued for with the plaintiff, at Portland, and they were such as are kept in those shops. Her husband’s name was 0.

<p>In an action of debt upon the judgment of a justice of the peace whose commission had expired for more than two years, if the minutes upon the justice’s docket are such, as to enable the Court to perceive that they would authorize the record of a regular judgment in that case, they will be sufficient to sustain the suit.</p>

On REPORT from Nisi Prius, Howard, J., presiding. Assumpsit, on account annexed. Plaintiff lived out of the State. A plea in abatement was filed for want of an indorser of the writ before entry, on which an issue was made. On the writ blank, as prepared by the clerk, were printed the words “from the office of.” Underneath the attorney wrote his name when he made the writ, and testified that he intended it to be an indorsement.

This was an action of assumpsit before Howard, J., on an order of the following tenor : — “ West Minot, April 10, 1849. “Mr. W. B. Benson, please to pay Charles B. Jeques, or order, thirty-six dollars cash; charge the same to my account. “ James Meaney.” On the back were these words — “Accepted, July 16,1849. William B. Benson by Geo.

On Exceptions, Howard, J., presiding. This was an appeal by defendant from the judgment of a justice of the peace in assumpsit. The general issue was pleaded. When the copy of the writ was read to the jury, defendant’s counsel presented what purported to be the original writ, and moved that the writ be abated and the proceedings quashed for want of a seal thereon.

<p>ON Exceptions from Nisi Prius, Shepley, O. J., presiding.</p> <p>This was an action against the defendant, as sheriff, for the default of his deputy, Joseph Nudd, in neglecting to keep property attached on the plaintiff’s writ, against Josiah P. Churchill & al., for thirty days after judgment.</p> <p>The general issue was pleaded, and a brief statement filed, that the property attached belonged to Churchill alone, and was exhausted in satisfying the demands against him, on which it had first been attached.</p> <p>The return of Nudd, on plaintiff’s writ, showed that the attachment was made, subject to other attachments against Josiah P. Churchill.</p> <p>After making those attachments, Nudd ceased to be a deputy, and when the plaintiffs obtained judgment in their suit against Josiah P. Churchill & al., coroners only were authorized to serve writs and collect executions. Nudd was then a coroner, to whom was sent the plaintiff’s execution, within thirty days from the rendition of judgment, with orders to apply in satisfaction the property attached on the writ.</p> <p>Nudd made a return on the execution, as coroner, but dated more than thirty days after the judgment, setting forth that ho “had made diligent search for property of defendant, within his precinct, and could find none wherewithal to satisfy the execution,- that the property attached on the original writ was made subject to a previous attachment and had been appropriated to the payment of the execution issued upon the judgment recovered thereon.”</p> <p>This return was a part of the evidence offered by plaintiff, and received against the objection of defendant.</p> <p>Nudd wrote a letter to plaintiff’s attorney, acknowledging the receipt of the execution, within thirty days after the judgment, and in it stated that the property attached on the writ was subject to prior attachments on writs against Churchill, on which judgments had been obtained, and the property had been appropriated towards their payment, but was insufficient.</p> <p>This letter was admitted against the objection of defendant.</p> <p>Evidence was introduced tending to show that the property attached was partnership property, and on the contrary that it was not.</p> <p>The jury were instructed that if the goods were the property of the partnership at the time of the first attachment, the property should first be applied to the partnership debts; that objection was made that there was no demand on Nudd, who it appeared was a coroner; that if the execution was put into his hands, as a coroner, within the thirty days, with orders to apply the property on the execution, they were authorized to consider that as a sufficient demand on Nudd, the deputy sheriff, they being the same person; that, if the jury found that the property was partnership property, and these plaintiffs were creditors of the partnership when they made their attachment, they were entitled to have the property applied on their execution in preference to the defendants, and that the burden of proof was on the plaintiffs to show it was partnership property.</p> <p>A verdict was returned for plaintiffs, and the defendant excepted to the rulings and instructions.</p> <p>in support of the exceptions.</p>

On Facts agreed. Assumpsit. The plaintiff, living in-the county of Cumberland, brought this suit against the defendant, who lived in •the county of Washington, as administrator of the estate •of Taft Comstock, who died in that county. The estate was represented insolvent, and plaintiff appealed from the decree of the judge of probate, with respect to plaintiff’s claim disallowed by the commissioners.

RepleviN for a horse called Fiddler, tried before Howard, J. The question was one of title in the plaintiff. He produced a bill of sale of the horse from John Goddard to himself, dated Feb. 3, 1854.

ON REPORT from Nisi Prius, Howard, J., presiding. Trover, for a building. After the evidence was introduced it was agreed to submit the cause to the determination of the full Court on the facts proved and admissible. A nonsuit or default to be entered as the legal rights of the parties might require. The facts are all stated in the opinion.

<p>On Exceptions from Nisi Prius, Howard, J., presiding.</p> <p>Indictment, against the defendant for being a common seller of spirituous and intoxicating liquors, between the first day of April and the last Tuesday of November, 1854, without an appointment.</p> <p>The first count alleged the offence to be by retail, and in less quantities than the Revenue Laws of the United States prescribed for the importation thereof into this country.</p> <p>The second count alleged, that he was a common seller of wine, brandy, &c. within the time fixed in the indictment.</p> <p>And it was further alleged, that defendant at the November term, 1852, “was duly and legally convicted as a common seller of spirituous and intoxicating liquors in the county aforesaid, against the peace of the State and contrary to the form of the statute in such case made and provided.”</p> <p>Evidence was introduced of more than three sales of spirituous liquor, by defendant, within the time in the indictment, but the quantity was not stated, nor whether the liquors wore imported or domestic.</p> <p>The counsel for defendant requested the instruction, that, to convict him on the first count, the jury must be satisfied from the evidence, that he sold spirituous or intoxicating liquors, in at least three instances, in less quantities than the Revenue Laws of the United States prescribe for the importation thereof into this country, which request was refused.</p> <p>The instructions were, that the prohibition of the statute was general, extending to all spirituous and intoxicating liquors, whether imported under the laws of the United States or not, and without regard to quantity; and that the allegation “by retail in less quantities than the Revenue Laws prescribe for the importation thereof into this country,” was unnecessary and immaterial, and might be rejected as surplusage; that, if the evidence satisfied the jury that defendant had sold spirituous and intoxicating liquors in at least three instances within the period laid in the indictment, though such sales were of imported liquors, and in quantities not less than the Revenue Laws of the U. S. prescribe for the importation thereof into this country, still they were authorized to find the defendant guilty upon both counts in the indictment, unless it appeared that he was duly and legally appointed, &c.</p> <p>The county attorney then offered a record of the S. J. Court, of the same county, for Not. Term, 1852, setting forth an indictment against a person bearing the same name of the defendant, for a violation of the same act alleged in the present indictment and for a similar offence; and for plea in that case, the record set forth, that he would not contend, and that he was sentenced and complied-therewith.</p> <p>This evidence was objected to —</p> <p>1st. Because the sentence was upon the plea of nolo con-tendere, and not on a conviction within the meaning of the statute,</p> <p>2d. Because the defendant did not appear to have been adjudged guilty of the offence charged, or of any other offence.</p> <p>3d. Because it contained no words by which it could be identified as the record of conviction set forth in the indictment.</p> <p>The jury returned a verdict of guilty,</p> <p>in support of the exceptions, cited 3 G-reenl Ev. §10; State v. Noble, 15 Maine, 476; State v. Smith, 32 Maine, 369 ; U. S. v. Howard, 3 Sum. 15; Rex v. Edwards & al., Russ. & Ry. C. C. 497 ; Roscoe’s Crim. Ev., (aver-ments,) 101; Ricket v. Solway, 2 Barn. & Aid. 360; Wilde v. Com. 2 Met. 408; and same, 413; Com. v. Briggs & al. 5 Pick. 429; Lee’s case, 1 Leach, 0. C. 464.</p>

Exceptions from Nisi Prius, Shepley, C. J., presiding. Assumpsit, for a fall set of artificial teeth for defendant’s wife. The contract was made with the wife, for the manufacture of the teeth for a certain price, with the knowledge and assent of defendant. When put into her mouth she complained that they felt odd and pained her. The plate was then somewhat filed, but she still complained, and declined to pay for them.

On Report from Nisi Prius, Howard, J., presiding. Assumpsit, on a promissory note, dated Dec. 30, 1851, signed by E. L. Porter & Co. The plea was the general issue. The promisors in the note were alleged to be E. L. Porter & William B. Benson, who were both made defendants.

<p>A division among fie heirs of the realty, by parol, and a subsequent occupation in severalty, interpose no obstacles to the process of partition by either of the heirs.</p> <p>An heir who has sold and conveyed her part of the estate, so assigned by parol, may, after the title has revested in her, maintain this process for her share.</p> <p>And one who has conveyed all his interest, excepting his right in the dower, is rightfully made a party to the proceedings.</p>

Exceptions from Nisi Prius, Howard, J., presiding. This was a report of a referee under a rule of Court in favor of the plaintiff, which was ordered to be accepted at the October term, 1854. After that acceptance a suit was commenced by J. M. Adams against the plaintiff, returnable at the January term, 1855, in which the defendant was summoned as his trustee, and disclosed his indebtedness in the amount of the award.

ON REPORT. Action op Dower, against husband and wife. The respondents pleaded in abatement, that they were not tenants of the freehold when, &c. The demandant replied, that they were, when, &c., and tendered an issue to the country. Demandant introduced from the registry of deeds a life lease of the premises, from W. B. L. Staples to the female respondent, dated before the demand of dower, the lease being duly acknowledged and recorded.

<p>This was a petition for a review, before IIowaed, J.</p> <p>In the process sought to be reviewed the respondent was a petitioner for partition of certain real estate owned in common by him and the parties represented by petitioner for review.</p> <p>After due proceedings had, the interlocutory judgment was entered, commissioners appointed, and a division made by metes and bounds, and their return accepted and final judgment entered.</p> <p>The petitioner for review offered to prove by the commissioners, that they determined to divide a certain parcel into two equal parts, and to set out one half to the present respondent and the other half to the heirs represented by the petitioner, and supposed they had so done; that owing to the irregular shape of the land and an error in calculation, occasioned by taking an improper base line, the lots in fact were not equal, but the part set out to present respondent exceeded the other by 1860 square feet; that the error was not discovered until after the acceptance of the report.</p> <p>But the presiding Judge intimated, that the evidence was inadmissible, and that question was submitted to the full Court.</p> <p>If the evidence is admissible and presents a good cause for a new trial, the cause is to be heard; otherwise the petition to be dismissed.</p> <p>cited Sturdivant v. Greely, 4 Maine, 534; Elwell v. Sylvester, 17 Maine, 536.</p> <p>cited R. S., c. 123, § 1; Haskell v. Beckett, 3 Maine, 92.</p> <p>The authority relied upon by the other side was one based upon the statute of 1821, § 2, and had been overcome by ■the provision of R. S., cited.</p>

<p>■Where certain personal property was leased to the defendant, and persons were agreed upon to appraise a portion of it, their appraisal in writing of the whole property, without other proof, is not legal evidence in an action against him, although it is stipulated that the whole shall be appraised.</p> <p>Of the acts and omissions of the lessor that will excuse a breach of the covenants of the lessee.</p> <p>The construction of the language of a written contract is within the province of the Court, and when the determination is left to the jury, exceptions lie, unless it clearly appears they have construed it correctly.</p> <p>A levy upon property leased for the debts of the lessor, without any fault on the part of the lessee, or any agreement on his part to pay them, will excuse the latter from performance of his covenants to manage such property, after it is so taken.</p>

<p>Os Repobt from Nisi Prins, Shepley, 0. J., presiding.</p> <p>Debt, to recover a forfeiture given by R. S., o. 30; tried originally before a justice of the peace, and brought up by appeal.</p> <p>The writ alleged, in two counts, the defendant to be the owner and possessor of a certain ungelded male horse, of one year old and upwards, found going at largo, without a keeper, in the highway or road in said Biddeford, as an estray.</p> <p>Defendant objected that the declaration was insufficient, and that no cause of action was set forth.</p> <p>A motion was made to amend by striking out the words "highway, or,” which was allowed against the obje3tion of defendant.</p> <p>A verdict was returned for plaintiff.</p> <p>It was agreed by the counsel, “ if the counts were sufficient or are amendable under objections of defendant, the verdict is to stand, otherwise a new trial is to be granted.”</p> <p>The counts as originally made disclosed no cause of action. One of the offences described in the statute must distinctly be set forth. The allegation in the highway or road discloses no offence. Roads and highways are not the same. Cleaves v. Jordan, 34 Maine, 9.</p> <p>An estray is an animal going at large, whose keeper is unknown. Bouvier’s Law Diet. Yol. 1, estray. This is repugnant to the allegation of ownership in defendants.</p> <p>Estrays are particularly provided for in the statute.</p> <p>There is no sufficient description of the place where the beast was at large. A recovery upon such a declaration would be no bar to an action when the place was particularly designated. Nor is there any description of the beast.</p> <p>The amendment was improper, because a new cause of action, if any thing, was thereby allowed. As the writ stood there was none whatever, and under such circumstances no amendments are allowable.</p> <p>But after the amendment, there is still no cause of action. The count reads \in the road in said town of Biddeford.” To incur the penalty^ there must be a running at large in a road “ of the town” bf Biddeford. There may be many roads in that town over which they have no control. This may have been a private road. It should appear that the town had control of the road where the beast is found. ■</p>

<p>On Report from Nisi Prins.</p> <p>Assumpsit.</p> <p>The plaintiff's property was taken and sold for a tax assessed against him, under a warrant from the assessors of Sanford.</p> <p>He was an inhabitant of School District No. 5, in Sanford, and was assessed for his poll and estate to the amount of $27,31, and refused to pay it.</p> <p>At a meeting of that district, called on March 19, 1851, under an appropriate article in the warrant was this vote : “ Second, on motion, voted to see if they would raise the sum of three hundred dollars' to defray the expenses of building a school house in said district the present year. Nine in favor and nine against.”</p> <p>Other articles as to the building and location of a school house received a similar vote.</p> <p>Within thirty days after this meeting, more than five voters of 'the district made application in writing to the selectmen, to insert in the warrant calling the next annual meeting of said town, an article requiring the opinion of the town on the subject of the said disagreement.</p> <p>In the warrant for the next annual meeting, was this article:— “To see if the town will grant the petition of G-eo. Chadbourne and others, requiring the opinion of the town on this subject of disagreement, as to raising money for the erection and building a school house for School District No. 5, in said town, and that said town may take such action as law and justice shall appertain.”</p> <p>Under this article the town “voted to raise $250,00 on School District No. 5, in Sanford, to build a school house in said district.</p> <p>The assessment was made in pursuance of this vote, and no question arose as to the time of making it or demand of the taxes, nor that plaintiff demanded it of the treasurer of the town while the money was in his hands.</p> <p>If the action could be maintained, defendant was to be defaulted for $27,81, and interest and costs; if not, plaintiff to become nonsuit.</p> <p>1. The town were empowered to assess this tax by virtue of the school district proceedings of March 19. Ch. 198 of laws of 1850, art. 2, § 12.</p> <p>The requirement to appoint in writing three suitable men of the district, a committee to superintend the expenditure, is merely directory. If the tax is properly assessed, an omission of the latter requirement will not make the previous act void.</p> <p>2. The money raised in the case at bar, was not raised, collected or appropriated to the use of the town in its corporate capacity. The town was the mere trustee of the money thus raised. Ch. 193 of Acts of 1850, art. 3, § 1.</p> <p>The duties required of towns in cases of this character are merely ministerial. Perry v. Dover, 12 Pick. 206.</p> <p>3. Rut if there are irregularities in the proceedings, no action can be maintained against the town; the remedy, if any, is against the school district. Perry v. Dover, above; Little v. Merrill, 10 Pick. 543; Gage v. Currier & al., 4 Pick. 399; Inglee v. Bosworth & al., 5 Pick. 498; Trafton v. Alfred, 15 Maine, 258; Soper v. Livermore, 28 Maine, 193; Tucker v. Wentworth, 35 Maine, 393; Taft v. Wood, 14 Pick. 362.</p> <p>that the action was properly brought against the town, cited R. S., c. 14, § 56; Stetson v. Kempton, 13 Mass. 212; Sumner v. Isi Parish in Dorchester, 4 Pick. 363; Nelson v. Milford, 7 Pick. 26; Perry v. Dover, 12 Pick. 206; Little v. Merrill, 10 Pick., 543.</p> <p>That the vote of the town was unauthorized and illegal. Ch. 193 of Acts of 1850, art. 2, § 12. It did not appear the town had jurisdiction. There was no subject of disagreement presented.</p>

<p>Upon a promissory note made payable to the president, directors and company of a bank, or their order, which was never discounted or negotiated by the bank, but which was sold by the principal to a third person, no action can be maintained by the holder against the surety thereon, although the bank authorize a suit to be prosecuted in their name.</p>

<p>Whether alleged obstructions or defects in a highway render it unsafe, although not in the traveled part of it, is for the consideration of the jury.</p> <p>And in determining its safety, the width of the way, is, under some circumstances, an essential element.</p> <p>Whether in some particular localities the highway should not be made safe and convenient for its entire width, is a question for the jury to determine.</p> <p>The Sabbath, as established by statute, commences at midnight preceding, and ends at sunset on the Lord’s day.</p> <p>Traveling after sunset on that day is not illegal.</p> <p>Nor is it any defence in an action for damages against a town, for injuries to plaintiff’s horse by a defect in one of their highways, received after sunset on the Sabbath day, that the plaintiff let his horse on Sunday, and at the time of the injury the horse was being used under such contract.</p>

ON REPORT. Writ op Entry. The defendants pleaded the general issue, and, by brief statement, Jane 0. Langley alleged that, at the time of the execution of the mortgage deed, she was, and, at the time of the trial, continued to be a married woman, the wife of Robert Langley, and that the premises are her own freehold.

On Repget, Rioe, J., presiding. Assumpsit. The writ contained two counts, one for money had and received, the other for goods - sold, money paid, &e. The following paper signed by both parties was the evidence of plaintiff’s claim: — ■ “Biddeford, March 12, 1852. “ I have paid twenty-five per cent, on the amount of one hundred and forty-five dollars to Mr. A. Austin, which was the amount of his claim on me, and he has consented to discharge me until I can pay the balance…

ON Exceptions from Nisi Prius, Rice, J., presiding. Assuíipsit, oh a note signed by defendants of the following tenor: — “Biddeford, Dec. 13, 1850. “ For value received, we, Frederic Robie as principal, and T. P. S. Dee-ring as surety, jointly and severally promise to pay Morris E. Palmer and William Pierce, trustees of York Tent, or their successors in office, the sum of $50, in six months after date on demand and interest.” At the time this suit was commenced, Samuel Moore…

On Exceptions, Shepley, O. J., presiding. This was a complaint for unlawfully selling spirituous liquors, originally made before a justice of the peace. The sale was alleged to have been made on March 5,1852. The complaint was made on May 20, 1854.

<p>The commissioners appointed on a petition for partition, have no power to determine any question of title to any of the property embraced in their warrant, and where they have thus exceeded their authority, their report should he re-committed.</p> <p>After the interbcutory judgment has been entered in a petition for partition, no questions can be raised by any of the tenants, as to any betterments in the common property, while that judgment remains in force.</p> <p>Nor has the law been changed by the Act of 1855, c. 157, but the rights of the tenants in the common property must be determined now as formerly before the entry of the interlocutory judgment.</p> <p>■Whether exceptions lie to an order of the presiding Judge, directing a recom-mitment of the report of commissioners in partition; quero.</p>

On Repoet from Nisi Prius, Shepley, O. J., presiding. Assumpsit, to recover on account annexed to plaintiff’s writ.

ON Exceptions from Nisi Prius, Shepley, C. J., presiding. Assumpsit. The case was referred.

ACTION on the Case. A general demurrer was filed to the declaration, which consisted of two counts. Under leave of Court a count was added. The pleadings not being withdrawn, there was a joinder in demurrer after the amendment. The nature of the action, and substance of the several counts, appear in the opinion of the Court, which was drawn up by in support of the demurrer.

<p>In actions of slander, the time 'when it was uttered may be alleged with a continuando.</p> <p>And the place, when alleged with a videlicit, is sufficient, and even its omission would only be a fault in form.</p> <p>The allegation that the slander was uttered in the presence and hearing of divers persons, or in the hearing- of certain parsons, (by name) sufficiently sets forth its publication.</p> <p>Of the declaration in actions of slander.</p> <p>To charge one with. haying “ stolen hoards,” without any qualification, implies the crime of larceny, and no innuendo is necessary to explain its meaning.</p>

ON Repoet from Nisi Prius, Wells, J., presiding. Petition for Partition. The respondents pleaded they were seized of the premises as tenants in common, each of \ ^to^Tf. TlL-frefitioner’s title was derived from the levy of an execution ins his favor against one John D. Pillsbury, and he offered the original writ, judgment, execution and levy made within thirty days after the judgment, as evidence. The attachment was made April 23, 1850.

Oh ExceptioNS from Nisi Prius, Shepley, C. J., presiding. Assumpsit, on a promissory note. The general issue was pleaded. Evidence was offered in defence tending to show that the note in suit was given for a former note, signed by Taylor, the principal defendant, to one Nathaniel Smith, deceased, of whom plaintiff was administrator.

ON EXCEPTIONS from Nisi Prius, Shbpley, C. J., presiding. Case to recover damages for flowing land. Salmon Falls river is the boundary line between Maine and New Hampshire. The defendants are a corporation under an Act of New Hampshire, and are also recognized as such by an Act of Maine. Across this river, in August, 1846, they commenced to build a dam upon their own land, and finished it in the autumn of 1848.

<p>Where property insured is wilfully and maliciously burned by a third person, no action can be maintained against the wrongdoer, for the money paid by the insurer in his own name.</p>

On Facts Agbeed. Debt, on a Bond. The principal obligor was convicted before a magistrate, on Aug. 17, 1853, of a violation of § 4, c. 211, of Acts of 1851, and was sentenced; from which he appealed and gave the bond in suit, and during the pendency of that appeal, sold spirituous liquor without any authority under the laws of the State.

On ExCeptions from Nisi Prius, Shepley, C. J., presiding. Complaint, under § 11, of c. 48, of Acts of 1853, to search defendant’s dwellinghouse.

Assumpsit. In this ease a verdict was returned, and a motion made to set it aside, and for a new trial, on the ground of surprise at the testimony given, and on account of newly discovered evidence.

On Repost from Nisi Prius, Rice, J., presiding’. Debt, on a poor debtor’s relief bond. The brief statement alleged a performance of one of the conditions of the bond. The principal debtor lived, was arrested and gave the bond sued, in the county of Cumberland. Soon after, that part of the county of Cumberland in which he lived was set off and formed a part of the new county of Andro-scoggin.

ON Exceptions from Nisi Prius, Rice, J. presiding. Assujupsit, on an account annexed; one of the items was for tlio payment of defendant’s money tax. ’ An account was filed in set-off, one of the items of which was for use and occupation of defendant’s house from Sept. 6, to Nor. 1st, 1852. Proof of the occupation and value of the rent was introduced. And the plaintiff showed the payment of the tax.

ON Report from Nisi Prius, Rice, J., presiding. Case, to recover for an injury done to plaintiff’s horse. The defendants’ railroad is made through improved land of the plaintiff, and, through a defect in the fence on the line of the railroad, his horse escaped from his pasture on to the tract, and was injured by the locomotive of the defendants while running an evening train.

ON Report from Nisi Prius, Rioe, J., presiding. Trespass quare clausum.

<p>On an acknowledgment in -writing- by a deputy sheriff, that he has money in his hands, arising from a sale of property assigned by the owner to plaintiffs for the benefit of Ms creditors, and a promise to account to-them as such assignees upon certain contingencies, no action is maintainable by the assignees after their fiduciary character has ceased, although the contingencies in the -writing have arisen, unless they have some interest in the money, or furnish proof that the suit is prosecuted at the request of the party entitled to it.</p>

On Exceptions from Nisi Prius, Shepley, O. J., presiding. Petition for a review. After bearing tbe evidence offered on tbe petition, tbe presiding Judge ruled, that be saw no cause for disturbing tbe verdict. Tbe petitioner filed exceptions, which were allowed for the purpose of bringing the question before tbe full Court, the presiding Judge doubting if they would lie. submitted the case without argument.

On Report from Nisi Prius, Rice, J., presiding. Case, against defendants as common carriers. The plaintiff delivered a box containing thirteen coats, directed to “Saroni & Goodheim, No. 40, 42, North, formerly Ann St., Boston,” to the depot master of defendants at Livermore, and paid the freight thereon.

On Exceptions from Nisi Prius, Rice, J., presiding. Case. The suit was for an alleged breach of warranty for the soundness of an horse. One witness, called by plaintiff, testified, that be saw the horse in controversy three days after the exchange, and she appeared sore in the feet; would keep stepping up first one foot and then the other and appeared stiff when turned short on the floor, and was some lame.

<p>The Acts prescribing the limits of towns and counties are public Acts of which the Court are bound to take notice.</p> <p>The offence in a criminal charge should appear to have been committed in the county named in the indictment.</p> <p>But an indictment which alleges an offence to have been committed in a town named, and that it belonged to the county at the finding of the bill, without describing in what county it was when the offence was committed, is valid.</p> <p>An offence committed in a town which is afterwards incorporated with other towns into a new county, on which no proceedings are pending, is cogniza- ' b!e by the Court sitting in such new county. Their jurisdiction extends over offences committed within the territorial limits of the county, whether before or after its incorporation.</p> <p>An indictment in which two distinct times and places have been mentioned where the substantive offence has been committed, and reference is afterwards made to time and place, by’the words “then and there,” is defective ; hut when one of the places previously mentioned has reference only to the residence of a person named therein, it is unexceptionable.</p>

ON Report, Shepley, C. J., presiding. Trover for a building. After the evidence was introduced, the cause was submitted for the decision of the full Court upon the legal testimony, with authority to enter judgment by nonsuit or default, as the facts and law might authorize. The building was personal property. The claim of plaintiff was by an attachment and sale on his execution at public auction.

On Exceptions. This was an action to recover damages suffered by the plaintiff in his mare for want of due care of her while performing a journey in the service of defendant, and was tried before Rice, J., under the general issue.

ON Report from Nisi Prius, Rice, J., presiding. Trespass quare clausum. The defendant pleaded the general issue, and justified his acts as a surveyor of the highways. After the evidence was out, it was agreed that the cause might go before the full Court on report, they having authority to draw inferences as a jury might from the evidence and enter such judgment as the law and facts might warrant.

ON Report from Nisi Prius, Rice, J., presiding. Assumpsit, by the indorsee, against makers of a note made by Joseph D. Davis & Co., and payable to the order of Jos. D. Davis, one of the firm, on demand. An account against Joseph D. Davis was filed in set-off. The defence was, that the action was not maintainable, and that the note was not indorsed until it was overdue, and that the account in set-off should be allowed.

Ok EXCEPTIONS from Nisi Prius, Shepley, C. J., presid- . Ill mg. TRESPASS, for a quantity of manure. The writ contained two counts, one for breaking and entering the plaintiff’s close, the other for carrying away his property. It appeared that the plaintiff was the owner of a house and lot of land, which was occupied in 1844 and ’45 by one Anderson, as his tenant. In the fall of 1844, Anderson agreed with the defendant for a mow of hay, to be paid in manure.

Assumpsit to recover rent for a lot of land which the defendant occupied from March, 1845, to March, 1846. In Eeb. or March, 1845, the defendant wished to hire the premises of the agent of plaintiffs, who told him the rent was $20, per annum, and he promised to pay it, and after-wards used the premises, and it appeared that such was a reasonable price.

On Report from Nisi Prius, Rice, J., presiding. Assumpsit, against the indorsers of a promissory note. After the testimony was introduced, it was agreed, that the full Court should decide the cause upon the testimony introduced without objection, and upon such as was admissible, although objected to; to draw inferences as a jury might, and enter a nonsuit or default.

Ox EXCEPTIONS from Nisi Prius, HOWARD, J., presiding. TRESPASS, quare clausum fregit. The general issue was pleaded, and a brief statement filed, that the acts, (if any,) wore done under a license from the plaintiff.

On Exoeptions from Nisi Prius, HOWARD, J., presiding. Indictment.

Ox EXCEPTIONS from Nisi Prius, Tenney, J., presiding. Teespass, quare clausum, against Charles A. Eowler. The general issue was pleaded. This action was originally brought before a magistrate, and tried in 1850, and an appeal taken.

On EXCEPTIONS from Nisi Prius, Tenney, J., presiding. Assuiipsit, for supplies furnished to Benjamin N. Berry, a pauper. The pauper had a derivative settlement from his father in Brighton. The defendants contended, that he subsequently gained a settlement in Cornville by five consecutive years of residence in that town, and that his home was with one Jos. Barker.

<p>INDICTMENT POR PERJURY.</p> <p>There was a general demurrer and joinder.</p> <p>The substance of the indictment is recited in the opinion of the Court.</p> <p>in support of the demurrer.</p> <p>Every material fact which serves to constitute the offence charged should be alleged and sot forth in the indictment with precision and certainty as to time and place. State v. Thurston, 35 Maine, 205; State v. Baker, 33 Maine, 52; 3 Bac. Abr. 106, Indictment, G-, 4; Reg. v. Pelham, 8 A. & E., N. S. 959; 2 Hale’s P. C. 178; Hawk. B. 2, c. 25, § 78; Hawk. B. 2, c. 23, § 88; 1 East’s P. C. 346; 1 Chit. 0. L. 219; Rex v. Holland, 5 T. R. 607.</p> <p>It is not shown by the indictment that the oath was not extra-judicial. Commonwealth v. White, 8 Pick. 453 ; State v. Furlong, 26 Maine, 69; King v. Aylett, 1 T. R. 63; King v. Dowlin, 5 T. R. 311.</p> <p>The allegations in the indictment show that the perjury was committed in a proceeding in a course of justice. That is sufficient, so far as it relates to the proceeding in which the perjury is alleged to have been committed., Commonwealth v. Warden, 11 Met. 407.</p>

ON FACTS AGREED. This was an action on the case against an officer for a false return on a levy upon execution.

On Report from Nisi Prius, Tenney, J., presiding. Debt upon a bond. The defendant pleaded the general issue, and alleged by brief statement, that the bond was made under duress. The defendant was arrested by the collector of taxes for the town of Athens, for non-payment of taxes. To obtain his release he gave the usual bond, running however, to the inhabitants of Athens.

ON Report from Nisi Prius, TenNEY, J., presiding. The writ was dated Oct. 25, 1850. It contained three counts upon an account annexed, for money paid and for money had and received. It appeared from the evidence that in the winter of 1846-7, the defendants bought of W. II. McCrillis the stumpage upon No. 5 township, range 1, and employed the plaintiff to cut and haul the timber.

<p>Those who are not parties to the record in an appeal from tile County Commissioners to the Supreme Court, cannot taire exceptions to the ruling of the Court.</p> <p>Thus the County Commissioners are not parties in an appeal from their decision.</p>

EXCEPTIONS from Nisi Prius, Tenney, J., presiding. INDICTMENT, for being a common seller of spirituous liquors. The indictment was found at Sept, term, 1853, and the attorney for the State interrogated the witnesses if they had seen any persons drinking intoxicating liquors at defendant’s store between the 2d day of June, 1851, and the time of finding the indictment. This was objected to, but permitted.

PETITION for the writ of certiorari to bring «p the records of two justices of the peace and quorum. The defendant was arrested on an execution of the plaintiff’s and committed to jail. He then cited the plaintiff to attend at his disclosure. At the time appointed he made a disclosure and was allowed to take the oath prescribed by law, and was discharged from imprisonment.

ON EXCEPTIONS from Nisi Prius, Tenney, J., presiding. Indictment. It contained but one count charging the respondent with the crime of adultery with one A. M., a married woman. It also alleged the respondent to be her father, and that the parties were within the degrees of consanguinity, within which marriages by the law of this State, are incestuous and void.

<p>ON Report from Nisi Prius, Tenney, J., presiding.</p> <p>Writ op Entry.</p> <p>After the evidence was introduced it was agreed to submit the cause to the decision of the full Court upon such of the evidence as was admissible, the Court to draw inferences therefrom as a jury might properly do. The titles under which tlio parties claimed are fully stated in the opinion.</p> <p>The demandant’s title depending upon that of John Elan-dors, he introduced a lease of the premises, executed and recorded in June, 1829, from said John to Nathaniel Flanders for life.</p> <p>In that lease was the following: — “That whereas the said Nathaniel hath by his deed of this date, conveyed unto the said John the farm situated in said Cornville whereon the said Nathaniel now lives, and whereas the aforesaid conveyance might subject the said Nathaniel to difficulty and inconvenience by depriving the said Nathaniel of the means of subsistence and a comfortable place of abode, now in consideration of the premises, the said John,” &c. leased the same premises.</p> <p>Evidence was also introduced that John occupied the same from the time the lease was made until after the levy, and that Nathaniel died in 1840.</p> <p>The demandant also offered the deposition of Timothy Eastman, who among other matters testified as to the contents of the deed mentioned in the lease, he having drafted it, and that after it was delivered, thought it was given to bim to keep on some contingency, and tliat wlien bo moved out of the State, in 1835, it was loft among bis papers.</p> <p>That part of the deposition relating to the contents of the deed was objected to, and ruled out.</p> <p>He also called Levi Johnson, who testified that Eastman’s papers were left with bim and that on searching them he was unable to find such a deed.</p> <p>The deposition was offered after this testimony was given.</p> <p>made some objections to the levy, but relied principally on the position that no legal proof had been introduced of any title in John Flanders; and that the loss of the deed to him had not been proved, and no parol evidence of its contents was admissible. Kimball v. Morrell, 4 G-reenl. 368; Emery v. Vinall, 26 Maine, 295.</p> <p>on this part of the case, contended that the deposition of Eastman should be admitted. It was taken under a commission; the witness was out of the jurisdiction and it was not objected to, excepting as to certain parts.</p> <p>The copy of the lease was admissible under Nulo 34 of this Court, and that recites the fact of the conveyance to John.</p> <p>By this paper Nathaniel is estopped from denying that he had conveyed the premises.</p> <p>The attachment and subsequent levy are tantamount to a deed from John Flanders, duly executed and recorded in July, 1836. All this was before any claim by defendant.</p> <p>This lease, with other evidence, estops Nathaniel Flanders and his grantee, the tenant, who took his deed after the attachment, from contesting the fact recited in the lease, that Nathaniel .had conveyed by deed to John, and from contesting the title of John and of these plaintiffs.</p>

ON EXCEPTIONS from Nisi Prius, TenNEY, J., presiding. This was an action of assumpsit for money had and received, and submitted to the Court by agreement. The defendant objected to the rulings of the Court. The nature of the exceptions is immaterial as the decision was placed on a different ground. No arguments were offered on either side.

ON Report from Nisi Prius, Tenney, J., presiding. Assumpsit, for supplies furnished to Moses Pressy and his wife, and to one Rebecca Dyer, between March, 1852, and August, 1853. The only question in issue was the legal settlement of the paupers. After the evidence was out, the cause was taken from the jury and submitted to the full Court, with power to draw inferences as a jury might, and enter judgment by nonsuit or default according to the legal rights of the parties.

ON Exceptions from Nisi Prius, Appleton, J., presiding. Held: that it was not necessary; and a default was entered, to be taken off if either of the rulings was wrong. cited Hayward v. Leonard, 7 Pick. 181; Harrington v. Stratton, 22 Pick. 510; Folsom v. Muzzey, 8 Greenl. 400 ; Hammatt v. Emerson, 27 Maine, 808 ; 1 Parsons on Con., 881; 2 Greenl.

On Exceptions from Nisi Prius, Hathaway, J., presiding. Assumpsit, on a promissory note signed by defendant ■and indorsed by one Samuel L. Hazard. • The note came into plaintiff’s hands duly indorsed before its maturity and passed through the hands of one Center, a broker in Boston.

ON RepoRT from Nisi Prius, Appleton, J., presiding. Case against defendant, as sheriff, for the default of his deputy.

ON Exceptions from Nisi Prius, Hathaway, J., presiding. Weit oe Entry. The tenant pleaded the general issue, and claimed by possession of twenty years. He also claimed betterments. The demandant derived his title to one half of the premises by deed from one Lemont and others, and to the other half by deed from C. & W. D. Crooker. From the evidence it was claimed by tenant, that the Crookers attempted to convey more than their title authorized.

On Exceptions from Nisi Prius, Appleton, J>, presiding. Appeal from a decree of the Judge of Probate. . Held: that the appeal was well taken, and that it was more fit that the grandfather should be appointed guardian, and therefore reversed the decree of the Judge of Probate. To which rulings and decree the appellee excepted. in support of the exceptions.

On ExCeptions from Nisi Prius, Hathaway, J., presiding. Assumpsit on a note and account. The writ was dated March 1, 1854. The pleadings were the general issue and a discharge in bankruptcy; and the record showed a discharge of the note and all that part of the account charged prior to May 28, 1842. An account in set-off was filed for blacksmith work from time to time, but the most of it in 1846, and sustained by the book and suppletory oath of defendant.

ON Exceptions from Nisi Prius, Hathaway, J., presiding. Assumpsit. This action was tried on a review granted on the petition of Samuel Page, at the Oct. term, 1851. The parties to the original suit were J. B. Swanton & al. v. Samuel Page, Benjamin Bailey and Wm. G-reenleaf. At the Oct. term, 1853, the two latter original defendants were defaulted. Page pleaded the general issue.

ON EXCEPTIONS from Nisi Prius, Tenney, J., presiding. Assumpsit. William D. Sewall, as the administrator of Joseph Sewall, was summoned as the trustee of defendant, and on his disclosure was discharged by the presiding Judge. Service of the writ on trustee was made April 24, 1852. The defendant was surety or indorser for Joseph Sewall on sundry notes and drafts, and held a note against him for §2800, the consideration of which was such contingent liabilities.

This was an action of Assumpsit, on account annexed, ' tried on the general issue, and brief statement of the stat-nte of limitations, before Tenney, J. The writ was dated September 2, 1853. The account commenced in July, 1844, and ended in April, 1850, and was for repairs on Schooner Resolution. There were no credits, and the work and materials were furnished on six months prices.

<p>A minor son allowed by his father to leave him and work, for lús own support, and malte contracts for himself without interference, may acquire and hold property in his own right, and maintain actions at law respecting it, although he has never been emancipated.</p> <p>One of the owners of chattels held by tenants in common, may maintain an action for the value of his property against any one who appropriates the whole to the exclusion of his possession in common.</p> <p>A person who lias no possession actual or constructive of property demanded, of him by the owner, nor has previously ■wrongfully possessed or -withheld it, cannot be made liable in an action of trover for refusal to deliver it, although he may have withstood the efforts of the owner to obtain posses-son, or prevented him by force.</p>

On ExCeptions from Nisi Prius, Appleton, J., presiding. Assumpsit for money had and received. The plaintiff by an agreement in writing, engaged defendant to cut ship timber, at a certain price per day, and agreed to pay the wages and board of the men he should employ, and the stumpage and hauling of the timber. By the receipts of defendant be appeared to have received $370. An account was filed in set-off of various items of payment for wages, board and services.

EXCEPTIONS from Nisi Prius, Appleton, J., presiding. Debt, on a bond given on arrest of the principal, under § 17, c. 68, R. S. Its conditions were not fulfilled. defendants pleaded nil debit, and tendered an issue which was joined. On the production of the original writ, officer’s return, bond, judgment and execution, the defendants submitted to a default, and claimed a hearing in chancery.

ON RepoRT from Nisi Prius, Appleton, J., presiding. Assumpsit. This action was brought by the owners of brig Mechanic against the master, to recover moneys alleged to have been detained in his hands belonging to them. The brig sailed from Batb to New York, and from there was bound for Gatoon on the Chagres river, and was stranded at its mouth. She was condemned and sold upon the beach. The captain returned with the avails to New York.

On ExCeptxons from Nisi Prius, Cutting, J., presiding. Assumpsit, on a promissory note, The following account in set-off was filed: — To use of horse from Oct. 6, to Dec. 10, 1851, $12,00 To injury and damage to same, agreed to be paid, $15,00 It was objected by plaintiff, that such an account was unauthorized in way of set-off, but the Judge allowed' proof in support of it.

<p>On Facts Ageeed.</p> <p>Assumpsit.</p>

On Exceptions from Nisi Prius, Cutting, J., presiding. Assumpsit, to recover' for the use of a Norcross planing machine from October 1851, to June, 1852. A verdict was returned for plaintiff.

Writ of Dower. The claim was set up by reason of the seizin in the premises of John Freeman. In the declaration was a description of the farm in which dower was demanded, “ of which the said John, (her husband,) was- seized during the coverture,” but there was no allegation of the nature of the estate. The declaration 'concluded thus, “ being on the premises did then and there demand her said dower thereof.

<p>ON Exceptions from Nisi Prius, Cutting, J., presiding'-,</p> <p>Debt, on a poor debtor’s relief bond on execution.</p> <p>The general issue was pleaded, and a brief statement filed of performance of one of the conditions of the bond.</p> <p>After the plaintiff had introduced his judgment, execution and bond, the defendant produced a certificate of discharge of the principal defendant, signed by Samuel Kennedy and William Chism, two “ disinterested justices of the peace and quorum.”</p> <p>This certificate, in addition to the form prescribed by c. 148, § 31, R. S., alleged, that said Kennedy was selected by the debtor and said Chism by the creditor’s attorney, and both agreed to by the parties, they expressly waiving every objection to the residence of the justices and all other objections.</p> <p>The certificate was objected to by plaintiff for not conforming to the statute, but was admitted subject to be impeached as to facts set forth therein and not required to be inserted in the statute form.</p> <p>The plaintiff was permitted to show, against the objections of defendants, that Kennedy was a surety upon the bond in suit, and evidence was also introduced tending to prove that all objections to the magistrates were waived, and that no objections were waived excepting as to the residence.</p> <p>The plaintiff proved that the disclosure of the debtor was in the hands of Kennedy, and that seasonable notice had been given to produce it; and he then was permitted to prove by parol the property disclosed, against the defendants’ objections.</p> <p>The counsel who brought the suit upon this bond, and who was present at the disclosure, testified as to what occurred at that hearing about the alleged “ waiver,” and said it was his intention to bring a suit on the bond if the debtor did not surrender himself to jail before it expired.</p> <p>The evidence as to the “ intentions” of the witness was objected to by defendant but admitted.</p> <p>The instructions requested and refused, and the instructions given to the jury, are not required to be stated.</p> <p>A verdict was returned for plaintiff for the amount of his demand, and exceptions taken to the rulings in the progress of the trial, to the refusals to instruct as requested, and to the instructions given; and the defendants also filed a motion to set aside the verdict as unsupported by the evidence.</p> <p>in support of the exceptions.</p>

ON Rbpoet from Nisi Prius, Cutting, J. presiding. Debt, on a bond executed by Lothrop as principal, and (Hidden as surety, in Feb. 1848. The writ is dated Jan. 8, 1853.

<p>(Jnder the laws of this State a tender may he made after action brought and before entry with the same effect as before the commencement of the suit.</p> <p>Where the principal and sureties on a poor debtor’s bond are sued, but no service made, a tender of the amount of the joint liability, including the cost of the writ, will be sufficient, although the writ may have been sent away by the attorney for the purpose of having it served, if he has time to recall it before it is actually served.</p> <p>In such suit where the tender covers the joint liability, no costs can be recovered by plaintiff, though he is entitled to a separate judgment against the principal for twenty per cent, interest on the amount due, beyond the amount tendered.</p>

<p>ON Repoet from Nisi Prius, Cutting, J., presiding.</p> <p>TRESPASS, quare clausum.</p> <p>This action was commenced on April 19, 1853. . The writ- contained counts for breaking, entering and carrying away a dam; also for breaking up plaintiff’s dam and diverting the water from his mill; also for tearing up and carrying away his boards, planks and a chain.</p> <p>After the evidence was out, it was agreed, that the Court, upon so much of it as was admissible, might draw such in-ferences as a jury might, and render such judgment as the law required.</p> <p>The titles of the parties are stated in the opinion of the Court.</p> <p>The evidence showed, that the dam across Dyer’s river had been built about forty years; when first built, a fulling mill was erected on the north side of the river, and about twenty years after a grist-mill was erected on the same side, which has been in operation ever since, and used by the plaintiff.</p> <p>To the shore on the south side, upon which the dam abutted, the plaintiff had no record title. On that side was á waste way. The owner of the land and shore on that side leased the same with the privilege to defendants, and they erected a store and lathe mill, built a flume and joined it to the dam in the place of the waste way, and so altered it as to draw the water from the dam to drive their mill. None of the materials of the dam were used in or about the mill; the chain of plaintiff which was upon one of the pieces of the bulk head, was removed as it was necessary to move the post, but was left upon the dam. There was evidence tending to show, that prior to the date of the writ, there was no lack of water to drive the mills on both sides Of the stream.</p> <p>The plaintiff claimed his right to abut his dam on to the opposite shore by prescription.</p> <p>1. Allowing the plaintiff had the exclusive right to the water power created by the dam, this action cannot be maintained, as he had suffered no injury when the writ was made. Curtis v. Jackson, 13 Mass. 50?; Rogers v. Bruce, 1? Pick. 184; Bonley v. Shaw, 6 East, 208; 3 Kent’s Com. 7th u ed. p. -539.</p> <p>2. But plaintiff is precluded from setting up any title by prescription, for his occupation was not adverse, but in submission to the title of defendant.</p> <p>3. The office copy of the deed objected to was admissible. Kimball v. Morrill, 4 Maine, 368; Emery v. Vinal, 26 Maine, 295.</p> <p>in support of bis prescriptive riglit as to his dam, cited Bliss v. Rice, 17 Pick. 23; Melvin v. Whitney, 10 Pick. 295; Hill v. Crosby, 2 Pick. 466; An-gelí on Water Courses, §§ 208, 217; 3 Stark. Ev. 1215; Com. v. Low, 3 Pick. 408; Coolidge v. Leonard, 8 Pick. 504.</p> <p>He also contended, that the introduction of the deeds by defendants did not change plaintiff’s rights.</p> <p>The office copy of the deed objected to was not admissible, as the defendant justified under it.</p> <p>The evidence showed an invasion of plaintiff’s rights and in any event he was entitled to nominal damages.</p> <p>Even if defendants were justified in removing the planks from the dam, they should have been restored to plaintiff, not put upon the premises of defendants.</p>

Os EXCEPTIONS from Nisi Prius, Cutting, J., presiding. Assumpsit. The charges claimed in this suit were principally such as make up a store account. The plaintiff produced his day book, and the suppletory oath was administered to him. He read over the entries, and said he had delivered the several articles read over to the defendant. This was all the evidence.

On Exceptions from Nisi Prius, Cutting, J., presiding. Assuhpsit, on account annexed. The plaintiff was a cordwainer, and the account mostly consisted of items pertaining to his trade. To support his account, his book containing the charges, with his suppletory oath, was admitted against the objection of defendant.

On REPORT from Nisi Prius, Cutting, J., presiding. Trover, for a vessel called tlie “ Kingsbury.” This action was commenced in Jan. 1852. The demand was made latter part of December previous. The plaintiffs claimed title by a mortgage of the hull, made by Willard Clapp to them in Nov. 1848, and recorded in the town of Newcastle.

<p>S’®1*011,1 from Nisi Prius, Cutting, J., presiding.</p> <p>TRESPASS quare clausum. The general issue was pleaded.</p> <p>After the evidence was out, it was agreed to submit the cause, upon so much of it as was admissible, to the decision of the full Court.</p> <p>The locus in quo was" the flats at the confluence and between the Kennebec and Eastern rivers. Over these flats the tide ebbs and flows leaving them bare at low water.</p> <p>The acts complained of (entering, cutting and carrying away the grass,) were done on that part of it more than one hundred rods from the upland, and the value of the grass was admitted.</p> <p>Plaintiff claimed title under mesne conveyances from the Proprietors of Kennebec Purchase, and also by possession.</p> <p>The evidence tended to show, that the owners of the up'land had for seventy-five years occupied and controlled these flats.</p> <p>Plaintiff’s title to the upland by deed was not in dispute.</p> <p>He introduced the vote of the Proprietors of Kennebec Purchase, by which they attempted to enlarge their previous grant of the upland adjoining the premises, to low water mark.</p> <p>The grants and deeds under which plaintiff claimed are referred to in the opinion of the Court.</p> <p>maintained, 1st. That the grants and deeds under which plaintiff claimed limited him to the upland.</p> <p>2. That he could not claim by virtue of the colonial ordinance, as it was more than one hundred rods from the upland.</p> <p>3. There was no such possession as the law recognized to gain rights.</p> <p>4. But by the common law the title to the land between high and low water mark was in the king, and the rivers and their shores over which the tide ebbs and flows. Com. v. Alger, 7 Cush. 67.</p> <p>King James the 1st, granted to the council of Plymouth the territory of New England, (including tbo flats in controversy,) a portion of which, embracing these flats, was subsequently granted to the colony of New Plymouth, who in their grants never included any rivers and their appurtenances. The flats remain vested in the colony.</p> <p>But the colony by their ordinance, which is held to operate as a grant, assigned them to the proprietors of the upland, but not to exceed one hundred rods. The State succeeding to the colony, and their rights and property, now holds the same beyond that distance.</p> <p>5. As citizens of the State, defendants had equal rights with plaintiff to cut the grass beyond the one hundred rods.</p> <p>To lands thus situated, a good title can be acquired by deed or by possession.</p> <p>1. By deed. A deed of the upland bounded on the water carries the title to the flats. Lapish v. Bangor Bank, 8 Maine, 85; Storer v. Freeman, 6 Mass. 435; Parker v. Bates, 13 Pick. 260; Sparhawk v. Bullard, 1 Met. 95; Austin v. Center, 1 Mass. 231; Lufkin v. Haskell, 3 Pick. 356: Com. v. Alger, 7 Cush. 63; Thornton v. Foss, 26 Maine, 402.</p> <p>This right to the adjacent flats is not restricted to one hundred rods. It rests on usage, and not the ordinance of 1641, and in no case has this question of extent arisen.</p> <p>The vote of the propriety of Nov. 11, 1761, extends the grant of lot 84, (the farm in controversy,) to the water, that is, to the water at all times, or low water. 8 Maine, 85.</p> <p>2. By possession. A valid title to such lands may be acquired by possession, open, exclusive, claiming ownership.</p> <p>The long continued possession in this case is evidence of a grant.</p> <p>The plaintiff had possession whether he had title or not, and can maintain this action against defendants, who were wrongdoers, for the disturbance of his possession.</p>

<p>In the trial of a complaint for flowing lands by means of a mill-dam, after the commissioners have been appointed and reported the damages, such commissioners cannot be interrogated whether they exercised great care in their proceedings, and in arriving at them conclusion. The jury are to judge whether the commissioners were inattentive to their duty by their ■own standard.</p> <p>Of the duties of commissioners appointed under a complaint for flowing lands. Of the evidence required to set aside a verdict impeaching such commissioners’ report.</p> <p>Where such report is impeached by the verdict, merely showing that the verdict is erroneous, is not sufficient cause to set it aside, but it must appear that the jury acted under improper influences, or were affected by some bias, or misconceived some of the essential facts of the case.</p>

ON Exceptions from Nisi Prius, Cutting, J., presiding, This was an. appeal from the judgment of a justice of the peace. The writ was returnable before one Bailey Feb. 21, 1853. On the return day, the justice being necessarily absent, the action was continued by Cyrus Cotter, Esq., another justice of the same county, to March 19, following.

Ox Report from Nisi Prius, Appleton, J., presiding. Writ of Entry. The demandant’s title originated in a levy upon the premises as the property of Nathaniel Leighton. The tenant claimed title, and it appeared that Nathaniel Leighton conveyed the premises to Abiel Erskine in Oct. 1849, which deed was acknowledged and recorded on Dec. 19, 1849.

<p>The accusation and examination of the complainant under e. 131, K. S., may he made before as well as after the birth of the child; and are not required to contain allegations of an accusation in time of her travail, or of constancy therein.</p> <p>Nor is it necessary to state the precise time when the child was begotten. If charged as having transpired between the first and fifteenth of the month recited, it is sufficient.</p> <p>That the complainant may be a competent witness, she must accuse the respondent at the time of her travail and remain constant in such accusation.</p> <p>This requirement at the time of her travail is satisfied, if her accusation is made during the interval of her pains.</p> <p>If, in her declaration, she allege the child was begotten on or about a certain day, it is a compliance with the statute. The certainty in criminal matters is not required in these proceedings.</p> <p>After a verdict against the respondent in a bastardy process, it is no ground for a new trial, that the jury found the child was begotten at a later time than that charged in the complaint and declaration.</p>

<p>An offer in writing in an action pending in Court, made by the defendant’s attorney in these words, “ and now on this third day of the term the defendant, by his attorney, comes and offers to be defaulted for the sum of seventy dollars damages in said action;” is a compliance with § 22 of c.115, R. S.</p> <p>And an offer so made, unaccepted, cannot be, used as evidence for any purpose in the trial of the action.</p>

<p>The Act incorporating- the city of Augusta, provided for the establishment of a municipal court consisting of one judge, who should have concurrent jurisdiction with justices of the peace in all matters civil and criminal within the county of Kennebec.</p> <p>Justices of the peace can exercise jurisdiction over no offences not given by some statute. It is never to be presumed.</p> <p>By c. 170, R. S. they are authorized to punish by fine, not exceeding ten dollars, persons convicted of certain offences, and to try all offences within their jurisdiction, and to sentence those convicted according to law, but under that Act have no authority to imprison.</p> <p>By c. 167, § 14, it is provided that “ all fines and forfeitures given or limited by law in whole or in part, to the use of the State, may be recovered by indictment in the district court when no other mode is expressly provided.”</p> <p>The punishment for a violation of § 2, c. 166, of the laws of 1855, being by a fine of twenty dollars, and imprisonment of the offender, puts the offence out of the jurisdiction of a justice of the peace, without some express provision to that effect. No such provision is found in that Act.</p> <p>And a conviction under that section, of a violation of its provisions, before the judge of the municipal court of Augusta, and sentence thereon, are illegal and void.</p>

<p>On Facts Agreed.</p> <p>EJECTMENT.</p> <p>The demandant’s title rests upon the recorded levy an execution. The tenant claims title by virtue of c. 207, of the Acts of 1850.</p> <p>Demandant recovered his judgment on August 23, 1851, and had the same levied on June 29, 1852. The lot of land, with the buildings, did not exceed in value five hundred dollars.</p> <p>A portion of the debt on which judgment was rendered accrued after Jan. 1850.</p> <p>The land in controversy being tenant’s homestead, was first conveyed to him by a recorded deed on April 17, 1849 ; and on August 11, 1851, he conveyed the same to William W. Bruce.</p> <p>William, afterwards, on May 6, 1852, conveyed the same back to the tenant; and on the 8th day of the same May, ho caused his certificate, claiming the same as his homestead exemption, to be recorded.</p> <p>If the Court shall determine that the action is maintainable, the tenant is to bo defaulted; otherwise a nonsuit to be entered with costs for the prevailing party.</p> <p>1. Section 1, of c. 207, is absolute and unconditional; the lot shall be exempt from levy for all debts contracted after Jan. 1, 1850. The debt here was so contracted.</p> <p>2. The 4th § of this Act is in the alternative. The head of a family may file a certificate; it is not imperative; not necessary in order to protect the homestead. It is only for the sake of convenience, only prima facie evidence of certain facts.</p> <p>3. A creditor may show it to be untrue. It is a legislative mode of legalizing evidence which would not otherwise be so. The debtor is under no necessity of filing such certificate, it only facilitates his proof; his homestead is protected without it.</p> <p>maintained 1st, that a certificate of record was necessary in all cases before an exemption can exist; that the very language of § 4 clearly demands it.</p> <p>2. That if this view is in conflict with § 1, the answer was, that this section must yield to § 4. The last must stand. 6 Mod. R. 261; Co. Litt. Ill and 115.</p> <p>3. But if both sections are to be reconciled, it may be done by applying them to two classes of cases; § 1, to those who owned and were in actual possession of a homestead at the time the Act took effect; § 4, to those who acquired a homestead after the Act took effect. This view will be strengthened by considering the Act of 1849, which was repealed by the Act of 1850.</p> <p>The Act of 1849, exempted the real estate of a resident citizen to the amount of $500, from any debt contracted after Jan. 1, 1850; the Act of 1850, § 1, continued and confined the exemption to strictly a homestead, changing the general exemption of real estate to that only of a certain description.</p> <p>By § 4, provision was made for those, who had not acquired a homestead at that time, but should afterwards, and might wish to have it exempted from debts, contracted after the certificate should be recorded.</p> <p>Notice seems to have been intended in any event by the Legislature.</p> <p>4. If either construction should prevail, the tenant had no case, for under the first no record was made, until the debt was contracted and judgment rendered; and under the second he did not acquire the lot until May, 1852, and made his record thereafter.</p>

On Report from Nisi Prius, Rice, J., presiding. Assumpsit. The writ contained one count for money had and received, and another for money paid, laid out and expended. A specification of plaintiffs’ claims described them as for money paid out on defendant’s checks, and they were presented.

<p>A memorandum and promise in writing by the makers of a note to pay it in any time within sis> years from the date of the writing, is in law, a promise to pay on demand.</p> <p>To such a promise the limitation bar begins to run from its date.</p> <p>And such new promise, though attested by a witness, is not a promissory note, but is subject to the limitation bar after six years.</p>

On Exceptions from Nisi Prius, Rice, J., presiding. Trespass for taking and converting a shoemaker’s shop situated in Mount Vernon. The defence was, that defendant, as deputy sheriff, attached the shop as the property of one Jonathan Vining, on a demand of his creditor.

The defendant was executor of the last will and testament of Poxwell E. Pettengill,' and was qualified to act on Dec. 27, 1847. His testator, with four other children, had given a bond in §2000 to the father, Howard Pettengill, and Annie his wife, conditioned to furnish support to his wife, during her life. Howard Pettengill died before the execution of the bond, but in his will he charged his lands with its performance.

ON EXCEPTIONS from Nisi Prius, BiCE, J., presiding. This action was trespass for false imprisonment. With the general issue the defendant filed a brief statement, justifying the acts complained of as done in discharge of his official duties, as deputy sheriff. The defendant had a writ in trespass against the plaintiff & al. in his hands for service, having upon it directions to attach real estate. On this writ he made the following return: — (i Kennebec ss.

On report from Nisi Prius, Shepley, C. J., presiding. This is an action of debt, on a poor debtor’s relief bond. The defence was that he took the oath prescribed by law within the six months mentioned in the bond. By the records the creditor was cited to hear the disclosure on the 17th June, 1852. The disclosure was on 22d of same June.

Ok Exceptions from Nisi Prius, Rice, J., presiding, Trespass quare clausum. The defendants’ railroad passed in the vicinity of the plaintiff’s premises; and the latter proved that the defendants had dug* down and widened the wrought part of the highway, between their location on the west, and Ms tavern house on tho east, and had thereby rendered difficult the access from the highway to his house. There was some evidence tending to show a breach of plaintiff’s close.

<p>One sole seized of a parcel of land with mill privileges attached, has no power to convey, with such land, the right of flowing lands above, held by him in common with another.</p> <p>But where a mill-dam, owned by tenants in common, flows their common lands above, a release by one to the other of the mill sites and all the privileges and appurtenances thereto belonging, will authorize the grantee to continue the flowing of the lands above, and to transmit that right to his grantees without being liable to the payment of damages.</p>

<p>By § 10s o. 130, E. S., it is provided that before serving a writ of replevin the officer is required to take from the plaintiff, or some one in his behalf, a bond to the defendant with sufficient sureties, in double the value of the goods re-plevied.</p> <p>Such bond with only one surety is fatally defective, if objected to by a plea in abatement, or by motion seasonably filed.</p> <p>When proceedings in replevin are quashed for such defect, the plaintiff cannot contest, by the introduction of testimony, the right of defendant to a return of the property.</p> <p>By the illegality of the proceeding, it is “ made to appear” to the Court, on motion, that the property should be returned.</p>

<p>On EXCEPTIONS from Nisi Prius, Rice, J., presiding.</p> <p>Trover for a wooden building. • CJ</p> <p>The plaintiff introduced evidence tending to show that he sold to Moses B. Brown a shop for a certain sum which was</p> <p>to remain his until paid for. Brown moved it on to a piece of land and fitted it into a dwellinghouse and underpinned it, and lived there until he died. His widow occupied the same when this action was commenced. There was no evidence that it was ever paid for.</p> <p>It appeared that Brown moved it upon land of one Hoxie without his knowledge or consent. After finding the house there, Hoxie notified him the land was his, but Brown said he bought it of Reed, and afterwards agreed with Hoxie to buy the land of him and pay three dollars for it, but died without doing so.</p> <p>It also appeared, that the defendant had a deed of quitclaim of the land where the house stood, from Brown; and that plaintiff demanded the shop and house of defendant, who said he had bought it of Brown and got a deed of it, and should keep it; that Fuller could have a watch for it, but would not take it. About one hundred dollars worth of labor and materials had been added by Brown.</p> <p>There was other evidence tending to show, that defendant had never in fact exercised any actual control over the house.</p> <p>The presiding Judge instructed the jury, that if the building was put on Hoxie’s land by Brown without his knowledge or consent, but when Hoxie was informed that the house was thus put upon his land he consented that it might remain, it would be personal property and this form of action, might be maintained; that the agreement by Hoxie to sell to Brown would not of itself be sufficient evidence of such consent by Hoxie; but that they might determine from the position of the parties, the circumstances of the case, together with the agreement testified to by Hoxie, whether he did give such consent.</p> <p>The defendant requested instructions, “that taking a quitclaim deed of the building without taking possession of the land or house, or exercising any acts of control over it, but leaving it in the possession of Brown, was not a conversion, though there may have been a demand by plaintiff and a refusal by defendant to deliver, and that asserting a claim to the building, merely, without having the possession, is not an act of control over the property.”</p> <p>Which instructions were refused; but the Court instructed the jury that to entitle the plaintiff to recover, he must prove a conversion of the building by the defendant, as alleged in his writ; that conversion consisted in the exercise of dominion and control over property, inconsistent with, and in defiance of the rights of the true owner or party having the right of possession. That taking a quitclaim deed of the land and building and putting it on record would not, of itself, constitute a conversion; but they would look at all the evidence in the case, as well the taking and recording of the deed as the other acts and declarations of the defendant, and from the whole evidence determine whether he had, as matter of fact, converted the property to his own use.</p> <p>The verdict was for plaintiff, and defendant excepted.</p> <p>A motion was also filed to set aside the verdict as against the evidence in the case.</p> <p>The house when placed on Hoxie’s land and underpinned, without his consent, became real property. His consent that it might remain there, if afterwards given, was consistent with his right in it and would not make it personal property.</p> <p>The request should have been complied with. Fernald v. Chase, 31 Maine, 289, and cases there cited; Mattawam Co. v. Bentley & al., 13 Barb. S. C. Ml; Rand v. Sargent, 23 Maine, 326.</p>

ON Repoht from Nisi Prius, Rice, J., presiding. Assumpsit. The writ contained two counts. One was upon a note given by defendant for $225, dated Dec. 12, 1849, purporting to be for value received in policy No. 3180, and to be paid at such times, and by such instalments as the plaintiffs should from time to time determine, pursuant to the Act of incorporation and by-laws of the company. The other count was for an assessment made Jan. 1, 1853.

On Report from Nisi Prius, Rige, J., presiding. This was a suit to recover double the expense of building a partition fence assigned to defendant. The parties were owners of adjacent lands in Belgrade, and having disagreed as to their respective rights therein, the plaintiff proved an application to two fence viewers of that town to assign to each his share of the partition fence.

ON Exceptions from Nisi Prius, Rice, J., presiding. This was an action of assumpsit on a promissory note. James A. Thompson, the trustee, disclosed an assignment made to him by the defendants in due form of law, for the benefit of all their creditors. At the Nov. term 1855, the plaintiffs having caused the creditors who had become parties to the assignment, to be cited into Court, they alleged that it was made in fraud of creditors and void.

On Facts agreed. Trespass for false imprisonment. Defendant arrested the plaintiff at the several times alleged in the writ upon warrants duly issued, and after the trial received him into his custody until the sentence was performed. The defendant lived in the town of Rome and claimed to exercise the powers of an officer, as constable of that town.

ON Exceptions from Nisi Prius, Shepley, C. J., presiding. This was an action of debt upon a bond purporting to be dated Oct. 1, 1847, and to be signed by Hiram Stevens as principal, and the defendants and one James N. Cooper, since deceased, as sureties. Proof that the bond was lost was introduced, and a copy duly authenticated was used on the trial. The defendants pleaded “non est factum.” An issue was joined thereon.

<p>lío action can bé maintained against tile surety upon a bond given by tile cashier of a bank, -which purports to secure the bank against previous delinquencies of the cashier, if the agents of the bank had knowledge of such default, and it was unknown to the surety, and they neglected to inform him, having a reasonable opportunity to do so, before the execution of the bond.</p> <p>Where the surety in such action claims exemption from any responsibility on account of a fraudulent conceabnent of facts affecting the risk by the agents of the bank, which concealment may be proved by facts and circumstances, no one of which of itself would be sufficient, but when combined with and explained by other evidence might satisfy the jury of its existence, although it should appear in the evidence: —</p> <p>1st, That the surety did not call for information, nor see the officers of the bank after he was called upon to sign, and before the delivery of the bond, and the agent of the bank had not avoided giving the information.</p> <p>2d, That the agent had only omitted to seek after the surety and volunteer unsolicited explanations.</p> <p>3d, That knowing the defendant was to be the surety, and afterwards receiving his bond, without seeing him, when he was near at hand and could readily have been found; the proof of these facts will not authorize the Court to say to the jury that they overthrow the defence, as a rule of law.</p> <p>A request for certain instructions which cannot be given with legal propriety may be refused, and no exceptions lie because not given in a modified form.</p> <p>That a party has not been guilty of a fraudulent concealment of facts from another, cannot be assumed as a rule of law because the parties had no communication together verbalhj or in writing. Other modes of communication are common.</p> <p>A request for instructions which assumes a ground of defence to the suit which is not taken, may properly be refused.</p> <p>Thus, a request for an instruction, that defendant is not permitted to avoid his liability by proof that he did not understand the import of the bond, unless lie was induced by plaintiffs or their agents to suppose it was different from what it really was, may be refused, when the defence is, not that he did not know the import of the bond, but that facts material to the risk were concealed from him.</p> <p>Declarations of the officers of a bank when made to a party transacting- business with them in their official capacity, are admissible in evidence.</p> <p>But declarations made by the president of a bank, when not acting- in Ms official capacity, respecting its past iramaations, are not admissible.</p> <p>Whether a surety on an executor’s bond can be discharged, so as to make him a competent witness for the executor, without notice given by the probate court; quere.</p>

On Report from Nisi Prius, Shepley, O. J., presiding. Assumpsit, to recover back money paid to discharge two taxes assessed on plaintiff’s property by school district No. 2. In 1848 the limits of the school districts in Yienna were •changed, by which change the school-house of former district No. 2, was included in the limits of district No. 1.

<p>ON KepoRT from Nisi Prius, Shepley, C. J., presiding.</p> <p>Assumpsit, to recover back the sum paid on a school district tax in 1852, for building a school-house.</p> <p>After the evidence was introduced, the cause was agreed to be submitted to the decision of the full Court upon so much of the testimony as was admissible, and such judgment to be entered as the rights of the parties may require.</p> <p>Much evidence was given as to the proceedings of the district and the town, but from the view of the case taken by the Court, that part of it becomes immaterial.</p> <p>The collector of the tax testified, that a tax came into his hands against the inhabitants of school district No, 8 ; that he collected of the plaintiff on said tax $6,69, that plaintiff protested against the payment of said tax, that he arrested him and carried him to Augusta, (the place of the jail,) and brought him back; that at Augusta the plaintiff promised and agreed, that if he would release him from said arrest he would pay over the $6,69, and the costs of the arrest; that the sum paid was the tax assessed on plaintiff’s personal estate and poll; that he thereupon released him from said arrest, and that he afterwards paid him the tax and cost. The arrest was made the last of November, 1852, and it was paid about one week after the arrest, and in pursuance of the agreement by which ho was discharged.</p> <p>argued at length all the points raised in the case, as to the illegal proceedings, which it becomes unnecessary to notice.</p> <p>He also argued, that in any event the action was not maintainable on two grounds :—</p> <p>1st. The money was paid voluntarily and with a full knowledge of all the facts in the case. Money thus paid cannot be recovered back. Norton v. Harden, 15 Maine, 45.</p> <p>. He paid the money one week after the arrest, not because he was threatened with arrest or because his property was liable to seizure and sacrifice, but simply because he had promised to pay. The warrant had then lost its vitality. It is of no consequence what had previously transpired between the collector and plaintiff, their agreements and promises amount to nothing, so far as the real and actual fact of payment is concerned. If the payment was the result of choice, a free act of the will, without compulsion or duress either of the mind or body, then the money was paid voluntarily and with a knowledge of all the facts.</p> <p>• 2. The defendants have received none of the plaintiff’s money. The collector released the plaintiff upon his own responsibility, and at his peril. That act done fixed his liability, and he thereby assumed the indebtedness of the plaintiff. He was holden for it, whether plaintiff paid it 'or not. When plaintiff paid it, he paid it for the exclusive benefit of the collector. The town had a right of action against the collector, immediately on the discharge of plaintiff ; so that the money paid by plaintiff was not the district’s.</p> <p>3. The equities are on the side of defendants; there is no complaint that a house was not needed; that plaintiff was assessed for property he did not own, or that his proportion was too large. The law and the best interests of the rising generation require districts to build schoolhouses. This district has never had one before, although the town has had a corporate existence of fifty years. Stronger reasons than have been presented in this case, should be shown, before the proceedings of the district are broken up.</p> <p>maintained that many errors in the proceedings were apparent which rendered the tax invalid. As for the payment of the tax, he insisted it was done under protest and if the tax was illegal, he could recover it back, and cited Smith v. Inhabitants of Readfield, 27 Maine, 145; Preston v. Boston, 12 Pick. 7.</p>

On Repoet from Nisi Prius, Rice, J., presiding. Writ op Entry. After tbe evidence was introduced tbe case was taken from tbe jury, and upon so much of tbe evidence as was admissible the Court were authorized to draw tbe inferences a jury might, and render judgment according to law. The titles of the parties are fully stated in the opinion of the Court, which was drawn up by

On Report from Nisi Prius, Rige, J., presiding. Debt, on a bond. The defendant’s testator on Dec. 22, 1851, gave to plaintiff a bond for the conveyance of a parcel of land on payment of $100. A part of the condition was in these words: — “The condition of the above obligation is such, that if within one year from this date, upon the request of said Brown, Soon after this bond was executed the obligor died, and defendant was appointed his executor.

On EXCEPTIONS from Nisi Prius, Rice, J., presiding. Assumpsit. The parties were co-sureties on a note wherein Lewis Hopkins was principal. The note was paid by plaintiff. At the time the note was given, Lewis was carrying on a tannery in the neighborhood of the defendant, and about sixteen miles from the residence of plaintiff. Lewis Hopkins was a witness for plaintiff to show for whom the note was discounted.

<p>On RepoRT from Nisi Prius, Hathaway, J., presiding'.</p> <p>Assumpsit, to recover assessments and interest on defend-an^’s subscription for one thousand shares of the capital in the Oldtown & Lincoln Railroad Company. The writ bore date of Dec. 9, 1854, and the cause was presented under the general issue.</p> <p>In evidence was offered a charter, granted by the Legislature, on March 8, 1852, by which the defendant and others were made a body corporate by name of the Oldtown & Lincoln Railroad Company, for the purpose therein named.</p> <p>By the second section of the charter, it was provided that the capital stock of said corporation should consist of not less than eleven thousand, nor more than fifteen thous- and shares,</p> <p>On September 8,1852, after notice had been given as required, the charter was accepted, and defendant and eight others were chosen as directors.</p> <p>At this meeting the following vote was passed: “ whereas the corporators of this charter have heretofore directed subscriptions to the capital stock of said corporation, according to which a subscription has been obtained of shares exceeding the minimum number named in said charter, and whereas a large majority of said stock is represented at this meeting, and a majority of the persons subscribing are now present; therefore it is voted that said subscriptions be accepted and made valid between said subscribers and this corporation, and that they be admitted as the stockholders, at this meeting.”</p> <p>A code of by-laws was also accepted, and article 9th provided that the capital stock should be divided into shares of twenty dollars each, subject at any and all times to the assessments as ordered by the board of directors.</p> <p>The second section of the charter was amended in Sept. 1853, so that the capital stock should consist of not less than eight thousand shares, nor more than twenty-five thous- and shares, the par value being thereby fixed at $20 each, which was accepted by the directors on Oct. 1, 1853.</p> <p>A paper signed by defendant, under date of August 13, 1853, for one thousand shares, $20,000, of the following tenor, was in evidence.</p> <p>“Oldtown & LINCOLN Raileoad Company. Subscription. — Whereas, it is proposed to build an up river railroad, so called, and an Act of incorporation has been obtained from the Legislature of Maine, entitled 'An Act to incorporate the Oldtown & Lincoln Railroad Company.’</p> <p>“We the subscribers severally agree to take the number of shares of the capital stock in said corporation which are affixed to our respective names, and to pay to the treasurer of said company, when they have one, or to whoever may be entitled to receive the same, all such legal assessments on each of said shares, not exceeding twenty dollars on each share, as shall be made by the future government of said corporation after the same has been organized according to said Act.”</p> <p>The subscription books to the capital stock were put in, on which were subscriptions against persons who were responsible for 9476 shares only, excepting an additional subscription for 6000 shares, made by defendant on Sept. 17, 1853, which was denied to be valid by the plaintiffs.</p> <p>According to the records, defendant was a director from the organization of the company to August 7, 1854, and president until July 8, 1854, when he was removed by the directors.</p> <p>On August 16, 1853, defendant submitted to the directors the following proposition, which was accepted; and they voted “that'-committee be appointed to close the contract for the same.”</p> <p>“ Build railroad from a point in Milford to a point in Lincoln, each point to be selected by D. A. Sanborn, engineer appointed by the directors; the road to be constructed under the direction of said engineer, according to the plans and specifications to be furnished by him, and when finished, to compare favorably in point of grades, curves and workmanship, with the best roads in New England; meaning to embrace every thing appertaining to the construction of said road, and operating the same, except the land damages and fencing, and the furniture thereof.</p> <p>“ Said road to be completed by the 1st day of December, 1854, ready for the furniture.</p> <p>“Price, §12,000 per mile, and any addition above §4,400 per mile that the rails may cost.</p> <p>“ Payment, the present stock subscription, and balance in stock of said road, with the privilege of using mortgage bonds of the road to buy the rails, said mortgages to be provided for at maturity by me.”</p> <p>The contract afterwards drawn up for defendant to sign, was objected to as not in conformity with his proposition and was never signed.</p> <p>The defendant, on Sept. 17, 1853, before the meeting of the directors on that day, sent in a paper, which, after setting forth the proposition he had made to build the road, and the acceptance thereof by the directors, concluded as follows:— “And inasmuch as the subscription books have not been all returned and it cannot be ascertained precisely how much of the stock of said road remains not subscribed for by others, I hereby agree to take and subscribe for sis thousand shares more or less, intending to embrace all the rest and residue of the fifteen thousand shares authorized by the Act of incorporation not subscribed for by others. Price of shares limited to twenty dollars.”</p> <p>He also filed with them a protest against any action of theirs tending to impair his rights as subscriber to 6000 shares more or less of the capital stock, he claiming the right to subscribe therefor as he had done.</p> <p>On that day the directors voted to petition the Legislature for the amendment of their charter as above.</p> <p>At a meeting called to choose directors, in August, 1854, the defendant claimed to represent the above 6000 shares, and threw his vote accordingly which was rejected, and after-wards two antagonistic boards of directors were chosen.</p> <p>In December of the same year, this action was commenced.</p> <p>There was evidence introduced as to money expended in and about the road, and payments of money by defendant, and the records of the directors as to the several assessments, amounting to $20 per share, on the 1000 shares, the last subscription of defendants never having been assessed.</p> <p>There was much other evidence not bearing upon the points on which the decision turned.</p> <p>It was agreed, that if upon the testimony the defendant was legally holdcn to pay the assessments sued for, or any part of them, a default should be entered for such sum as the Court might think proper, otherwise the case to stand for trial.</p> <p>objected to the maintenance of this action: — -</p> <p>1. Because the required amount of subscriptions to the capital stock had never been obtained, and no assessment could therefore be legally binding. Salem Mill-dam Co. v. Ropes, 6 Pick. 23 ; Central Turnpike Cor. v. Valentine, 10 Pick. 142; W. ¿f N. Railroad Co. v. Hinds, 8 Cush. 110; Ken. & P. Railroad Co. v. Jarvis, 34 Maine, 360.</p> <p>2. The additional Act of Sept. 27, 1853, having been passed after the subscription was signed, could not affect that subscription nor give an' effect to it which it did not otherwise have. U. L. & C. Co. v. Towne, 1 N. H. 44; H. & N. H. Railroad Co. v. Cammell, 5 Hill, 383; Mid. Turnpike Co. v. Lock, 8 Mass. 268; same v. Walker, 10 Mass. 390; Angelí on Cor. 483, § 10.</p> <p>3. That no waiver could be made or was in fact made by defendant, which had or could have an effect to give validity to the Act of the Legislature which was otherwise unconstitutional or invalid.</p> <p>4. The additional Act was never legally accepted by the company until after ten assessments were made, the directors having no power to do such an act as to accept of the amendment.</p> <p>5. The contract and subscription for 6000 shares were valid and binding, and being so, the contract made with Fairbanks & Morgan was' illegal, as were also the assessments made to meet its calls. The assessments wore made upon a wrong basis by excluding those shares. The votes by defendant for said shares were legally cast and another board of directors was elected than those who acted in making the last ten assessments.</p> <p>The case was further argued by defendant’s counsel as to the illegality of the several assessments.</p>

ON Pacts agueed. Petition for the writ of certiorari. A road was laid out and established by the County Commissioners of Penobscot in the town of Hermon, on a petition to them for that purpose. Two county roads had previously been established and opened through that town, and this connected the one with the other.

ON ExCeptions from Nisi Prius, Hathaway, J., presiding. Assumpsit. This suit, commenced in August, 1853, is brought upon three notes of hand, dated May 25, 1835, running to one Springer, and by him indorsed. The defendant is sued alone, but it is alleged in the writ that the notes were signed by defendant and one Babcock jointly; and that Babcock since the date of the notes, and before this suit was commenced, was decreed a bankrupt under the laws of the United States.

ON RepoRT from Nisi Prius, Hathaway, J., presiding. Assumpsit. This action was brought to recover the amount of certain shares in the capital stock of the corporation subscribed for by defendant, and for assessments made thereon. The plea was the general issue.