Volume 40 — Maine Reports

<p>Representations by the vendor of personal xiroperty, as to its condition, made a month before the sale is consummated, are too remote to be admitted in evidence.</p> <p>When evidence has been introduced of representations respecting personal property by the vendor, some of which are mere opinions, and others regard essential facts which amount to a warranty ; and the Court are requested to instruct the jury that such representations imply a warranty to their extent, the request may properly bo refused. A Judge is not required to separate the matters contained in one request, and malee a portion of it, which is pertinent, his instructions to the jury, and withhold the rest.</p> <p>,A warranty to be effectual must be intended as such by the parties; but to Constitute a warranty, it is sufficient, if the words used implied an undertaking on tbe part of tbe owner, that the things sold were what they were represented to be.</p> <p>If a contract in writing for the bailment of property, signed by the bailee, contains a recital that 'the same, for a valuable consideration, was previously sold, transferred and delivered by him to the bailor, it is evidence that such previous contract was executed, and the title to the property passed to the bailor, although portions of it were crops not harvested.</p>

On Report, Hathaway J. presiding. Petition por Partition. Jacob Curtis, jr. pleaded that the petitioner bad no interest, title, or seizin in the land described in the petition. The petitioner and the respondents were the children of Jacob Curtis, deceased. The title of Jacob to the land described in the petition appeared by the copies of deeds in the case.

On Report from Nisi Prius, Appleton, J., presiding. Trespass, quare cltmsum, and for carrying away sundry articles of personal property. The plaintiff’s legal settlement was in the town of Madison. He resided with his family in Bangor, and was supplied for many months as a pauper.

On Report from Nisi Prius, Hathaway, J., presiding. Case, for damages alleged to be caused by defendant’s boom. The plaintiff was owner of a portion, and tenant of the remainder, of the premises described in his writ. Defendant occupied a dock southerly of and adjoining the plaintiff’s dock.

<p>A testator devised one undivided fourth part of his mills and real estate connected therewith, to his executors, in trust for S. TJ. D. during her natura! life, on the condition that they were to retain the income of that part, and pay over the same towards removing the incumbrances on the mill property, and towards the consideration agreed to be given for it, until one fourth of the incumbrance and one fourth of the consideration remaining unpaid were discharged; subject also to its proportion of the repairs : —</p> <p>He also devised to his executors all his real and personal estate, excepting the fourth part for the use of S. XT. D., to be held by them in trust for the payment of his debts, legacies and bequests; and to pay over the increase thereof, subject to the support of his family, to the payment of said debts, legacies and bequests, until the same were fully paid, when said trust estate was to cease: —</p> <p>Several legacies of money were given, but no provision in the will was made for his widow : —</p> <p>He also bequeathed all the residue of his estate to his three children in equal shares: —</p> <p>The dower of the widow in the mills was determined to be one third of the rents and profits — and after the proportional part of the incumbrances and consideration unpaid at the time of testatator’s death, of the fourth part of the mills devised for the use of S. U. D. were discharged, the executors withheld from the devisee one third of the net income of said fourth to discharge the widow’s claim for dower: —</p> <p>It was held that such specific devise was subject to dower, without contribution or remuneration from the residuary estate.</p>

On Exceptions from JVisi Prius, Hathaway, J., presiding. Trustee process. The plaintiff summoned, the Oldtown and Lincoln Railroad Company as the trustees of Fairbanks and Morgan, on July 1st, A. D. 1854. « The principal defendants were contractors with the O. & L. R. R. Co. to grade, bridge, gravel, &c., a certain section of their road for the price therein stipulated.

In Equity. This case was before the Court as reported in vol. 36, p. 544, and now comes up again on exceptions to tbe report of the master, and for instructions by the receiver then appointed by the Court.

On Exceptions from Nisi Prius, Appleton J., presiding. This was an Action in review.' At the June term, 1843, the defendant in review recovered a judgment against plaintiff and one Brown, who has since deceased. In June, 1844, Poster, the plaintiff, obtained a certificate of discharge in bankruptcy from all his debts due Jan. 28, 1843. In his petition, in 1853, for a review, he set out that certificate.

<p>Assumpsit, by one tenant in common against his co-tenant, for use and occupation of the common property, will not lie on an implied promise.</p> <p>But when a tenant in common has received more than his share of the rents of the common property in money, or as bailiff of the other, assumpsit to recover it may be maintained by his co-tenant.</p>

On Report from Nisi Prius, Hathaway, J., presiding. Assumpsit, on the following check: — “Grocers’ Bank. “ §3126,88. Boston, Nov. 4, 1854. “Pay to John Winn, Esq., or order thirty-one hundred twenty-six dollars, T8S8W. E. Paulk. “ To the Cashier.” This check was indorsed in blank by the payee. Plaintiffs gave in evidence the check and notarial protest.

Assumpsit. These suits were against the makers of promissory notes, dated at Bangor, Sep. 18, 1854. One of the notes read thus : — “ Two months after date, value received, I promise to pay E. Paulk or order, four thousand dollars at the Veazie Bank.” The other thus: — “ Two months after date, value received, I promise to pay D. E. Loavett or order, twenty-one hundred dollars, at either bank in Boston.” The general issue was pleaded.

On Report from Nisi Prius, Hathaway, J., presiding. Thes'e were two actions on the case to recover damages sustained by a collision of carriages in the highway, alleged to have happened through the fault of the defendant; the first for damage to plaintiff’s property, the second for injury to his wife.

<p>On Exceptions from Nisi Prius, Appleton, J., presiding.</p> <p>The question in this case was whether the trustees were chargeable on their disclosure and the evidence furnished.</p> <p>From their disclosure it appeared that defendants, a few days before the service of this writ, had agreed to consign to them a lot of pickets. They were received with a memorandum of the amount, signed by defendants, “agents.”</p> <p>After the service of the writ they were informed by one Wellington Reed, that he owned the pickets, and he showed them a bill of sale signed by defendants, as follows:— ■</p> <p>“Oldtown, Aug. 17, 1853.</p> <p>“ In consideration of supplies advanced and to be advanced by Wellington Reed, to the firm of Holmes & Estabrook, picket and lath manufacturers, in the Yeazie block, we hereby agree to sell, and do sell to the said Wellington Reed, all the spruce and pine pickets that we (may) have on hand, or may have on hand, to the amount of fifty thousand pickets, at eight dollars for spruce, and thirteen dollars for pine, per thousand.”</p> <p>Foss, a witness to the bill of sale, according to his deposition in the case, was present at the time, and saw the delivery of the pickets, manufactured for the security of certain supplies that Reed let them have from time to time. Those pickets which were not then sawed, were to be delivered on the bridge at the west end of the new block of mills, and were afterwards so delivered, and such supplies were all furnished before the bill of sale. He was the keeper of Reed’s books, but had no knowledge of any credit of them upon his books.</p> <p>The supposed trustees being satisfied that the property belonged to Reed, had, before making their disclosure, paid over to him and by his order, to defendants, the balance in their hands.</p> <p>The presiding Judge ordered the trustees to be discharged, to which order the plaintiff excepted.</p> <p>1. The facts show a case of fraud. The bill of sale is in. form absolute, and it is not for the parties to show it otherwise. Some of the pickets were manufactured, and some not — two different kinds are designated — no receipt for the amount given, and no account appears to have been kept. If absolute, what were defendants to have for their services ? and what was to be done with the payments for the pickets ? The appearance of the whole thing is to keep off creditors, or else a secret trust which is regarded as fraudulent. Co-burn v. Pickering, 3 N. H., 415.</p> <p>2. But if, according to the testimony of Foss, the bill of sale was merely as collateral, then it was absolutely void as to creditors. Richardson v. Kimball, 28 Maine, 463; Gorham v. Herrick, 2 Maine, 87; Whitaker v. Sumner, 20 Pick. 399.</p> <p>3. If it was a mortgage, it should have been recorded. R. S., c. 125, § 32.</p> <p>4. The sale, so far as it was intended to include pickets not then manufactured, is entirely void and ineffectual to pass any title. Pettes v. Kellog, 7 Cush. 456 ,• Jones v. Richardson, 10 Met. 481; Turner v. Bachelder, 17 Maine, 257; Garland v. Hilborn, 23 Maine, 442.</p> <p>5. There was something more to be’ done, to determine the quantity or price, and hence the plaintiff's title is incomplete. Houdlette v. Tallman, 14 Maine, 400; Stone v. Peacock, 35 Maine, 385.</p> <p>6. At best, the claim of Reed is but a collateral one, to secure him for supplies advanced and to be advanced. If nothing is due, the claim is satisfied, and the lien discharged. It is for Reed to prove the indebtedness. Such proof is wanting. If there was any at the time the contract was made, non constat, that it was not all paid.</p> <p>T. The future earnings of a debtor cannot be sold or assigned, so as to defeat a creditor’s claims. Mulhall v. Quinn, 1 Cray, 105; Hall v. Jackson, 20 Pick. 194; Carrique v. Sidehottom, 3 Met. 297.</p>

On Report from Nisi Prius, Hathaway, J., presiding. Assumpsit, on two notes of hand signed by Dexter Andrews, and payable to defendant, or his order, at Merchants’ Bank, Boston, and by him indorsed. One note for $487,00 dated Bangor, Oct. 26, 1847, was payable- in four months. The other for $400,00, dated Bangor, Dec. 24, 1847, was payable in five months from its date. This action was commenced on Dec. 19,1853. The larger note was produced on the trial.

On Exceptions from Nisi Prius, Appleton, J., presiding. Assumpsit, upon an unnegotiable note dated Oct. 25, 1850, payable to plaintiff in thirty days. The defence was that the sum claimed had been paid on an execution in favor of one Bissell against plaintiff and defendants as his trustees.

On Facts Agreed. Assumpsit, on. the following contract signed by defendant : — “Received of Samuel Godfrey three thousand dollars, for which I promise to convey the lot and house at Oldtown, where he now lives, also the lots of land in the town of Chester, conveyed to me by Ira Wadleigh — and also one lot of land in Township No. 4, containing one hundred acres, conveyed to me by J. & I. Wadleigh.” Samuel Godfrey deceased in 1840, and the plaintiff was duly appointed…

<p>On Exceptions from Nisi Prius, Hathaway, J., presiding.</p> <p>Case, for damages sustained by plaintiff from a defective highway in the town of Yeazie.</p> <p>The Penobscot Railroad Company under their charter, located their road across one of the highways of Veazio, and at the time of the accident to plaintiff, were making the necessary alterations in the highway to correspond with the grade of their road. A sidewalk from two to three feet above the traveled part of the road had been maintained for several years, and the railroad company had made a cut near to the sidewalk, and between that and the traveled part of the way, for six or eight rods, a part of it being six feet deep.</p> <p>The plaintiff, ignorant of the alterations in the highway, was traveling over it on foot, in a dark night, and was found in the deepest part of the cut with his thigh bone broken.</p> <p>There was evidence tending to show that the company had put up a slab three and one half feet high with stakes across the sidewalk, about two rods from the place where the plaintiff was found.</p> <p>The counsel for defendant requested the following instructions : —</p> <p>1. If the Penobscot Railroad Corporation, at the time of the accident, were lowering said highway, by their construction of their railroad across said highway and the company had not completed said alterations, at the time of the accident, the town of Yeazie is not liable in this case, even if the corporation had caused a defect at the place of the accident, by which the injury was caused.</p> <p>2. If the said railroad corporation, in pursuance of their charter, were in the act of constructing their railroad across said highway, and for this purpose were lowering said highway to accommodate the grade of their road, and had not at the time of the accident, completed said alteration, and given notice thereof in writing to one of the selectmen of the town of Yeazie, and the injury was caused by a defect in the highway made by the corporation, in making such alteration, the defendants are not liable.</p> <p>3. That if the railroad corporation, in constructing their track across said highway, used ordinary care and prudence in keeping said highway safe and convenient for travelers, and the injury was occasioned by the alteration or change in the highway made by the corporation, the defendants are not liable.</p> <p>The first two requested instructions were refused, the third was given.</p> <p>In the course of his charge, the Judge remarked, that although in this case, the fence across the sidewalk might have been sufficient notice and a guard to those who had knowledge of it, yet the jury could judge, whether to those who had no knowledge of it, it might not, perhaps, in the darkness of night, have contributed to increase the danger against which it was intended to guard, and have been itself a defect in the road.</p> <p>Other instructions in the cause were not objected to. A verdict was returned for plaintiff, and defendants excepted to the refusal to give the requested instructions, and to the one above given.</p> <p>1. The instructions requested should have been given. The railroad corporation had absolute and exclusive power to raise or lower the highway, and the town could not interfere while that process was going on. R. S., c. 81, § 8. By the 14th § of the same Act, the railroad company is required, while such acts are being done, to provide suitable and temporary ways.</p> <p>The defect was made by the corporation and the highway was under their charge alone, and it is only after the alteration has been completed that the town has any authority over it.</p> <p>The statute makes a distinction as to the liability of towns by indictment, and for damages ; because they are liable to an indictment it does not follow that they would be in damages. c. 25, § 57.</p> <p>2. The right of action of towns against railroad corporations, is too limited to admit of any other construction of the statute. R. S., c. 81, § 11.</p> <p>3. The instruction given as to the fence across the sidewalk, was erroneous; the fence could not at the same time bo a notice and warning, and itself a defect. The jury were misled by the suggestions of the Judge.</p> <p>supported the proceedings of the presiding Judge, and cited State v. Inhabitants of Gorham, 37 Maine, 451; Currier v. Inhabitants of Lowell, 16 Pick. 170.</p> <p>The remarks of the Judge about the fence, was a matter of fact for the jury; no law was attempted to be given in that particular.</p>

On Exceptions from Nisi Prius, Hathaway, J., presiding. Trover, for a note of hand given by defendant to Philip Putnam, plaintiff’s intestate. Putnam, after a short and severe sickness, died at the house of defendant. During that sickness he was possessed of the note in controversy.

On Facts Agreed. Assumpsit, for supplies furnished to one Robert Herring-ton, a pauper, whose settlement is alleged to be in Falmouth. No question arose as to notice or answer. The pauper was born in Falmouth in 1802, and his parents had, at that time, a legal settlement in that town. On Feb. 12, 1814, the town of Falmouth was divided, and a portion of it incorporated into the town of Westbrook.

Assumpsit. This, and five other suits, commenced on the same day of the date of the protests, upon bills of exchange, in which defendant was either drawer or indorser, were submitted to the decision of the full Court, under this state of facts.

On Report from Nisi Prius, Appleton, J., presiding. Writ oe Entry.

On Report from Nisi Prius, Appleton, J„ presiding. Writ op Entry. As evidence of his title to the premises, the demandant produced a mortgage deed of one W. G. Bent & al. to Royal Willard, and an assignment to himself, executed and recorded in 183.5, together with the last two notes recited in the condition.

On Report from Nisi Prius, Hathaway, J., presiding. Trover, to recover the value of a gold watch and chain, gold breast pin, two gold rings and two gold cuff pins. A demand of the property was admitted. The defendant was captain and part owner of the steamer Boston, running between Boston and Bangor.

On Report from Nisi Prius, Hathaway, J., presiding. Assumpsit, on an account annexed, and for money had and received.

<p>Bail taken on mesne process is discharged by a subsequent increase of the ad damnum.</p>

On Report from Nisi Prius, Hathaway, J., presiding. Debt, on a poor debtor’s relief bond. A certificate of discharge of the debtor, according to § 31, of c. 148, R. S. was relied upon in defence; and evidence, under objections, tending to prove that, by reputation, the debtor was worthless at the time of the examination.

On Report, from Nisi Prius, Appleton J., presiding. Complaint, under c. 48, of Acts of 1853. When the case was called in the Court of trials, it was agreed to submit the complaint to the decision of the full Court. If it should be adjudged bad, a nolle prosequi to be entered; if sufficient, then to be remanded to the criminal term for trial.

Bill in Equity, for a specific performance of the contract following: — “North Lincoln, Oct. 24, 1853. “Received of Thomas M. Jordan, Esq., thirty dollars, on account of a lot of land, joining a small tract now occupied by Michael Micue; and when said Jordan fulfils an agreement in relation to a line fence, then he is to have a deed of the same, for which this amount is in part.

On Report from Nisi Prius, Appleton, J., presiding.. Debt,, on a bond given on arrest on mesne process. The original suit on which the bond was taken, was entered at the October term of the Supreme Judicial Court, 1853, and defaulted.

On Exceptions from Nisi Prius, Cutting, J., presiding. Indictment, as follows: — “ The jurors for the State aforesaid, on their oath present, that Newell Burrill,otherwise called Joseph Burrill, of Bangor, in the county of Penobscot, on the 24th day of Nov. 1854, at said Bangor, three sleigh shawls, &c., (describing the property) and all of the value of thirty-seven dollars, then and there in the possesion of said Thomas H. Goodale and Walter Smith being found, feloniously…

<p>Petition for a writ of certiorari.</p> <p>The petitioner was owner of a small parcel of land, a portion of which was taken by the Penobscot & Kennebec Railroad Company. He was dissatisfied with the damages awarded by the Commissioners, and requested a jury.</p> <p>At the view and hearing of the jury, the petitioner claimed damages for a high' embankment made by the railroad, a part of which only rested upon his land; also for damages to his garden by the wash of the earth and gravel from the whole embankment on to his garden. The evidence tended to show that in addition to thp. damage of taking his land, it was greatly increased by the fill in front of his lot and dwelling house.</p> <p>The counsel for the petitioner requested the presiding officer t.o instruct the jury, that in estimating and awarding damages, they might take into consideration the injury already caused to his premises by the wash of the earth and gravel from the embankment, and tlte liability to future injury from the same cause; and in addition to the value of the land taken, they might add the injury caused to the residue of his premises by all the fill and embankments of the road in front of his lot, the base of any part of which rested upon his land taken.</p> <p>These requests were refused, and the jury were told that they should not allow any damages occasioned by that part of the embankment which stands on land not belonging to petitioner, nor any damages which might probably arise in future by the washing down of dirt and gravel.</p> <p>The jury returned a verdict, and the petitioner excepted to the instructions and the refusal, which were allowed by the officer in charge of the proceedings before the jury.</p> <p>contended that his request should have been complied with, and that the mode for computing damages, given to the jury, was erroneous.</p> <p>lie also contended that c. 41, of Acts of 1853, § § 9, 14 and 15, have modified the R. S. on that subject. The language in these sections is similar to that used in the R. S. of Mass. c. 39, § 56.</p> <p>The proceedings in this case were under the law of 1841, and the decision of Dodge v. County Com. of Essex, 3 Met. 380, was in point.</p> <p>Certiorari was the proper process to correct the errors of inferior tribunals. Dow v. True Sf al., 19 Maine, 46.</p> <p>sustained the correctness of the rulings and cited Rogers v. Ken. <§' Port. R. R. Co., 35 Maine, 319.</p> <p>The statute did not allow railroad companies to throw, or wash, gravel or dirt on to land not taken by them. For all illegal acts by them the common law afforded redress.</p>

On Report from Nisi Prius, Hathaway, J., presiding. Trover, for four promissory notes. After the evidence was introduced, it was agreed that tlio full Court might render a legal judgment upon the evidence admissible. The facts in the case are fully stated in the opinion of the Court, drawn up by

On Report from Nisi Prius, Hathaway, J., presiding. Covenant Broken. A general demurrer was filed to the plaintiff’s declaration, and joinder.

On Report from Nisi P)-ius, Appleton, J., presiding. Replevin, for a mast. Defendant claimed title under a bill of sale from plaintiff, the essential part of which was as follows: — “ Said Haynes agrees to sell, and does hereby sell to said Hayward & Co., of Bangor, all the logs cut and hauled into the Joe Merry waters, the present lumbering season, by J. & F. II.

On Report from Nisi Prius, Hathaway J., presiding. Assumpsit, for use and occupation of certain real estate. This suit .was commenced in Aug., 1848, for rent of the previous six years. The occupation of defendant was proved, and the title of the. plaintiff was by ,a levy made in the early part of 1842, and a quitclaim deed from the defendant to one Trask, in Dec. 1844, and from Trask, at the same time to himself.

On Pacts Agreed. Assumpsit, for board of defendant’s minor son. The parties lived in different towns and had no acquaintance with each other. Defendant’s minor son loft his home, ample provision being there made for him, without his father’s consent or knowledge, and worked elsewhere. He subsequently boarded with plaintiff, whose business it was to accommodate boarders, to recover pay for which this suit was brought.

<p>On Pacts Agreed.</p> <p>Covenant Broken, for breach of the covenant against incumbrances.</p> <p>The deed of defendant was executed in Sept., 1847, and read thus, “ beginning at a post in the south-westerly line of Court street, standing in front of the double house, now occupied by Carlton S. Bragg and Hiram Emery, and running thence, &c., (on two lines of the lot,) thence, between said lots, to Court street, thence, on Court street, to tho first mentioned bounds, — together with the buildings standing thereon.”</p> <p>Court street, the highway alleged to be an inenmbranoe on part of the land convoyed, was duly laid out in 1836. The south-westerly line of the street was about three feet inside of the line on which the front fence of this lot, as well as the neighboring lots, on that side of the street, stood at the time this deed was made, and continued to stand until 1854, when it was removed by the town authorities.</p> <p>Before this removal there was never any post in the southwesterly line of the street as laid out.</p> <p>There was a post in the front fence, where the dividing line between the two tenements, named in the deed, intersected it.</p> <p>On the dividing fence, about six feet from this post, stood another post, at the time the deed was made.</p> <p>The Court wore authorized to draw inferences as a jury might, and render judgment by nonsuit or default, as the law might require.</p>

<p>On Exceptions from Nisi Prius, Cutting, J., presiding.</p> <p>Indictment, for a nuisance by erecting and maintaining & building upon a common highway and public road in the town of Oldtown.</p> <p>The evidence tended to prove a dedication of the way in 1832, but it was not made or used until 1836.</p> <p>It appeared that at different times up to 1847, certain persons acting as surveyors of highways, in the same district, had declined working on the way, and had been so directed by the selectmen, denying that it was a town road.</p> <p>There was evidence tending to prove that persons purporting to act as surveyors, had worked upon and repaired the same; and it appeared that the road had been used for many years for public travel. One person, acting as such surveyor, gravelled the way in 1844, and repaired it in 1851.</p> <p>On this part of the case the instructions of the presiding Judge were: —• that the dedication might be shown on the part of the party making it by acts or declarations; but to make it a legal street, it must, have been accepted by the legal authorities of the town; — that, if the surveyors of the town repaired the way, it would be an acceptance by the town; — that three or four days work would be such an acceptance; — that if any person, acting as a surveyor, gravelled the street, it would be an acceptance; and that, if thus dedicated, and thus accepted, it would then become a highway, if generally used by the public, without proof of use for any particular length of time.</p> <p>A verdict was returned against the defendant, and his counsel excepted to the instructions,</p> <p>Knowles, for defendant.</p> <p>A surveyor of highways has no. authority beyond that given by statute. Jones v. Lancaster, 4 Pick. 152; Plummer v. Sturtivant, 32 Maine, 328. His duty is limited to making and repairing legal roads of the town within his limits. He cannot bind the town by any contract or any act of his beyond this authority. The power contemplated in the instructions is not given by the statute and would be dangerous. Towns are not exposed to sueh hazards.</p> <p>for the State, argued that the instructions wore in accordance with well known recognized principles, and cited Hobbs v. Lowell, 19 Pick. 405, and the cases referred to in that case.</p>

On Facts Agreed. Writ op Entry. The demandant claimed title to the premises under a deed from a cpllector of taxes, containing covenants of the grantor that the taxes were assessed and published, and notice of the intended sale of the land given, according to law; and that in all respects he had observed the directions of the law.

<p>On Report from Nisi Prius, Hathaway, J., presiding.</p> <p>Debt, on a bond dated July 11, 1854. The writ wq,s dated Sep. 8, 1854. The essential part of the condition was, “ that if the said Haynes, his heirs or assigns, within ten days from the date hereof, shall make payments in money and good notes, as hereinafter stated, we bind ourselves to sell and convey to said Haynes, the following described parcels of land, at $5 per acre, one third part to be paid in money, on reception of deed, and the remainder in equal payments, with annual interest and taxes, in satisfactory paper, on one and two years. It is hereby provided that this bond is not to be binding in case of the accidental non-reception of the deed of said land by us for the Joy heirs. ”</p> <p>The general issue was pleaded, and by way of brief statement, the defendants alleged performance of the conditions; likewise a waiver of strict performance by plaintiff, and a reasonable time given within which time a proper deed was tendered to plaintiff.</p> <p>The plaintiff introduced his bond, on the back of which was this writing, signed by defendants: — “ July 21, 1854. We hereby acknowledge the receipt of eight hundred dollars, and the tender of balance of first payment of land within described, and of the notes.”</p> <p>There was also another writing on the back of the bond, signed by defendants, without date, as follows: — “If the within described land is conveyed, the within named Ilenry P. Haynes having paid as agreed, and duly demanded a deed of us, we hereby promise to pay him one hundred and five dollars for the hemlock logs and bark, peeled by Person Whittier and Joshua Tate, when we shall convey the land to Mm according to the bond, we having said logs and bark for that sum, and charging said Haynes nothing for what we have paid, or are to pay, said Whittier and Tate for peeling same, or for what we have paid, or are to pay for hauling out and looking after the bark, having four months to get off the logs.”</p> <p>By the deposition of Nehemiah Ball, introduced by defendants, it appeared, that he purchased the land described in the bond, of the Joy heirs, as agent of defendants, on July 8, 1854, — that he was requested by defendants to make a conveyance of a portion of this land to them, about the 20th of said July, but was prevented by press of business,— that, on Sept. 6, 1854, he conveyed a part of it, and in the same Sept, the balance of it, to said defendants, (the witness lived in Massachusetts,) that he went home on July 25th, and on next, and ten following days, was confined to his bed by sickness, and to his room for ten days in addition, and unable to transact business.</p> <p>, This deed was introduced, and also á deed of part of the same land from said Nehemiah Ball to defendants, dated Sept. 6, 1854, and of the balance by a deed of Sept. 25, 1854. They also introduced their own deed of the land to plaintiff, dated Sept. 8, 1854, and evidence that it was tendered to him ■ on the ninth of the same month, which plaintiff refused, saying the bond Ayas broken.</p> <p>On the 21st and 22nd of August of 1854, a large part of the land described in the bond was burnt over by an accidental fire.</p> <p>There was evidence tending to show that plaintiff, the first part of August, 1854, claimed to own this land, and said he had a bond for a deed, sought a surveyor to run out a portion of the land into lots, and that he had employed some one or more to peel bark upon the tract, and had taken some away. On the ninth' of August, the surveyor was directed to run off a meadow lot for plaintiff’s father.</p> <p>It also appeared that Whittier and Tate, had bargained Avith defendants before the bond was given, as to cutting from a parcel of this land and had peeled bark upon it, and they continued to work thereon after the giving of the bond.</p> <p>The plaintiff also introduced evidence tending to prove, that when the first payment was made, defendants said they had not a deed ready — their deed from Ball had not come, but that plaintiff should have a deed in the course of three or four days, and that plaintiff said it would make no difference if he could have it then. That one of defendants, on Aug 1st, told plaintiff he would send the deed when it was ready, if he got it before the convention, at any rate he should be at the convention, and it might be relied upon then. (This convention was on Aug. 8th.) But no deed Avas then given.</p> <p>It also appeared that the contract in relation to the logs and bark, upon the back of the bond, was a short time before August 20, of that year.</p> <p>When the first payment was made, nothing was said to plaintiff about the title being in Nehemiah Ball.</p> <p>The Court were authorized, upon the evidence reported, to render judgment by nonsuit or default.</p> <p>1. The bond was only to be effectual upon a contingency — and there was an accidental non-receptioii of the deed from the Joy heirs. If so, this action is not maintainable, but only one for money had and received.</p> <p>2. On the merits of the case our defence is, that there was a waiver of strict performance, and that a deed was procured and tendered within reasonable time.</p> <p>The time for the performance of a sealed instrument may be enlarged by parol. 7 Cowen, 48; 3 Johns. 528.</p> <p>The evidence of waiver is in the acts of possession, by plaintiff, of the premises up to, and even after the fire, for he took off some of the timber after that.</p> <p>There is also evidence of waiver in the indorsement written by plaintiff on the bond. It contains this phrase; “ when we shall convey the land to him according to this bond?' This makes it evident that the land might be conveyed after that indorsement, which was made just before the fire.</p> <p>Now if there was a waiver and the time was not agreed upon, then the deed is to be given in a reasonable time.</p> <p>We tendered it in a reasonable time. The delay was occasioned by Nehemiah Ball, not by defendants, and he was unable to give it earlier on account of sickness.</p> <p>Plaintiff was not injured by the delay; the land became injured during the delay; that was the act of God, not of these defendants.</p>

<p>Assumpsit, to recover fifteen assessments, of five dollars each, on five shares in the capital stock of the Penobscot Railroad Company.</p> <p>At the trial, before Hathaway, J., after the evidence was out, it was agreed that the full Court, upon report of the evidence, should enter judgment by nonsuit or default, according to law.</p> <p>The cause will readily be understood from the opinion.</p>

On Report from Nisi Prius, Hathaway, J., presiding. Case, for damages received by tho female plaintiff, by reason of an alleged defect in the highway which the defendants were bound to keep in repair.

<p>In an application for insurance, tlie words, “ for the benefit of captain and owners,” and in a policy, “ on account of whom it may concern,” do not necessarily secure insurance, in ease of loss, to one having an interest in the property insured.</p> <p>The right of one to recover upon a policy must depend upon his interest acquired as a party to the contract.</p> <p>Where the owner of a vessel and the master who sails her on shares, direct the same person to procure an insurance on freight, W'ithout designating the portions to each, it may well be presumed, where their interests are equal, that they are alike interested in the policy.</p> <p>And where the owner became bound for the master for supplies of the vessel, and by consent of the master, his security was to be by insurance on the freight, such owner is entitled to indemnity from the insurance, although no assignment of the policy was ever made by the master.</p> <p>If a witness be disqualified, by reason of interest, at the time of giving his deposition, and at the time of trial that disqualification is removed by statute, the deposition is admissible.</p>

<p>Where the parties interested in a bond for the conveyance of real estate, agreed with the defendant, by parol, that he might have an interest in one half of the bond, by making the first payment, and also to hold the title of the other half of the land for security for money loaned them to make the payments for their moiety, by giving a bond to each of them to convey, by deed, one quarter of the premises on being reimbursed for his advances; and such payment was made and the title of the land transferred to defendant, in a suit in equity to compel performance of said contract, it was held, that the Court had no jurisdiction to enforce it; —</p> <p>1. Here was no trust expressed by any writing of the party sought to be charged.</p> <p>2. Nor did the plaintiff furnish the money whereby a trust could be implied.</p> <p>3. Nor was the title obtained by the defendant through any fraud, as he held it by consent.</p>

<p>An award under a submission as to the ownership of a yoke of oxen, in which • three persons claimed separate interests, that one of them should pay a certain sum of money to each of the others, is sufficient evidence that the ownership of the oxen is adjudged to be in him who is to pay the money.</p> <p>And where the award thus settles the title of the property, and the other claimants axe to receive tljeir just proportions of its value, no objection can be made to it for want of mutuality. ></p> <p>Nor is an alternative mode of payment therein set forth, conferring a privilege upon the party, if he should accept it, but otherwise to pay a sum certain, any objection to the validity of the award.</p> <p>In a submission at common law containing no stipulation as to costs, the' referees have no power over them, and if they award costs, so far it is void.</p>

On Report from Nisi Prius, Hathaway, J., presiding. Assumpsit. The writ in this case was dated Oct. 13, 1851, and contained two counts; one for $5000, and the other for $500, for money in the hands of an executor, alleged to belong to plaintiff’s intestate.

On Facts Agreed. Assumpsit, on the following note, dated at Fredericton, Aug. 30, 1841. “Sis months after date, we promise to pay Charles Long, or order, the sum of eighty pounds c’y, for value received. “A. B. & W. C. Hammond.” This writ was dated March 1, 1848, and on it was attached the! defendants’ real estate in the county of Aroostook. The plaintiff and Andrew B. Hammond were, and ever have been inhabitants of New Brunswick.

<p>On Exceptions from Nisi Prius, Cutting, J., presiding.</p> <p>Case, against the sheriff for alleged neglect and omission of duty in the service of a writ in favor of plaintiff against one Mayville and Eliphalet Morse, trustee.</p> <p>The writ in that suit was dated Nov. 6, 1852, and on the eighth of the same month, special directions in writing were given to defendant, as to the attachment. A part, of the instruction was as follows: — “You will attach the possession Mr. Mayville bought of Staples on the Danforth plantation, I think, and the hay of Mayville in the barn- of Staples, on said possession; — also trustée Mr; Morse, the man for whom Mayville worked last winter.”</p> <p>The plaintiff lived at Calais, and his debtor, Mayville, in township No. 9, about 55 miles from the former place.</p> <p>Morse testified that, in Nov. 1852, the defendant came to his house after dark, and Mayville was there the same night, — that while defendant was in one part of the house, May-ville and himself went into another part, where he settled the debt he was owing him by giving him a negotiable note, and when they came out where defendant was, he served the writ on him; but that he knew nothing about any such process, until the service was made.</p> <p>But the principal question was, as to defendant’s omission in not attaching the hay.</p> <p>Upon that point, the testimony, relied upon by defendant, was from one Colburn, who testified that on Oct. 23,1852, he bought a barn of hay of Mayville, in township No. 8, range 4, and was to give him §10 per ton, and paid him §387 on Dec. 15,1852 ;— that the trade was concluded on Oct. 26, when he examined the hay, and they agreed on a man to measure it, and afterwards took it in pursuance of that agreement; — that he lumbered in same township and used it there. It was measured some time after, but at what time he could not tell. Other facts in the case were not in dispute.</p> <p>Plaintiff requested these instructions: —</p> <p>That if the jury believe all the facts stated by Colburn, they do not in judgment of law show that there was any change of the property in that hay, as against Mayville’s creditors, until after Nov. 10, 1852; — that there being no controversy as to any fact necessary to entitle the plaintiff to maintain this action for the value of the hay in the Staples barn, admitted by defendant’s counsel to belong to Mayville, prior to the sale to Colburn, and no evidence furnishing any legal excuse for his omission to attach the hay, unless it is in Colburn’s testimony, that if they believe the whole of it, it furnishes no legal excuse for defendant, and the jury must return their verdict for the value of the hay not exceeding plaintiff’s claim ; — that, if they believed from the evidence, the defendant had an opportunity to serve the trustee writ on Morse, and omitted to do it, until after Morse had paid Mayville, and Morse was discharged as trustee, in consequence of such neglect, defendant is liable.</p> <p>That if the jury believe all the evidence in the case, they must return a verdict for plaintiff for the amount claimed in his declaration, not exceeding the value of the hay in the barn on the Staples place.</p> <p>That the facts stated by Colburn do not authorize the inference that there was a delivery of the property.</p> <p>These requests were not complied with, excepting so far as found in the instructions given, viz : —</p> <p>That if defendant was instructed to attach this hay, he was bound to, if it could be done with vigilant and reasonable exertions. Has he furnished any evidence of a reasonable excuse ? He relies upon the deposition of Colburn; and it is contended that deposition shows a sale of the hay in October, and before the defendant had an opportunity to attach it. Was that property sold to Colburn so as to pass the property ? Several things are necessary to constitute a sale. There must be a contract of sale, and, as against attaching creditors, this is not enough; there must be a delivery of the property sold. 'Was there a delivery of the hay in question? You will see if there is any evidence of such delivery prior to Nov. 10, 1852, the time when defendant was in that vicinity. If there was not, the property did not pass, and it was open to attachment; although the bargain in every other respect may have been consummated. If that hay was Mayville’s, and he had not delivered it to Colburn, and defendant has furnished no other reasonable excuse for omitting to attach it, he is liable for its value, not exceeding the amount of plaintiff’s claim.</p> <p>If defendant had an opportunity to serve the trustee writ on Morse, if he knew that he was the man when he first met him, and neglected to serve the writ on him, whereby that debt was lost to plaintiff, the defendant will be liable for that claim, if the other is not made out.</p> <p>The jury returned a verdict for defendant, and plaintiff excepted to the instructions and omissions to instruct as requested. He also filed a motion to set aside the verdict as against the evidence.</p> <p>1. All the facts in Colburn’s deposition do not show any change of the property in the hay, as against Mayville’s creditors, prior to Nov. 10th., Ludwig v. Fuller, 17 Maine, 162.</p> <p>2. If there was no change of the property, as against creditors, it is clear that the facts contained in Colburn’s deposition furnished no legal excuse for defendant, and no other excuse being offered, the second requested instruction should have been given. The third request was substantially complied with.</p> <p>3. But if the first and second should have been given, it is not easy to see why the fourth should not also. If there was no delivery of the hay on the Staples place priór to Nov. 10th, there was no defence to the action.</p> <p>4. The quantity of hay was not ascertained. Had it been stolen or destroyed, how could it ever have been ascertained in the mode agreed on ? Gilbert v. Woodbury, 22 Maine, 246. In the casé cited, the Chief Justice says ¡ — “When the whole testimony, if believed, would not in law establish the fact, the Judge might be required to express the legal effect of the testimony.” He also argued the motion.</p> <p>cited 20 Pick. 280, and Parsons on Cont. p. 441.</p>

<p>When a plea in abatement is overruled by the presiding Judge, the general issue pleaded, and the cause subsequently reported “for the consideration of the whole Court upon the evidence, without any stipulation as to the preliminary plea, it is considered as waived.</p> <p>When a plantation claims to support an action as a corporation duly organized under the Act in relation to elections, they must show a compliance with the provisions of that Act.</p> <p>Without a return by the assessors, to the office of the Secretary of State, of certain and definite limits of the plantation, the organization is defective and of no validity.</p>

<p>Parol evidence, to change or vary the meaning of a contract set forth in the condition of a bond, is inadmissible.</p> <p>No consideration is required to be stated in a contract under seal.</p> <p>A bond binding the obligor not’to exercise a trade is void, but where the inhibition is for a limited time, and within certain limits, it may be obligatory.</p> <p>And the exceptions to the common law rule should receive a liberal construction.</p> <p>Thus, where the defendant sold plaintiffs an iron foundry, in Calais', and agreed not to engage in the business of iron casting within sixty miles of that place-for tenyears.it not. being a part of the State densely inhabited, and containing but few places of much business ; it was held, that the agreement was binding.</p> <p>And such bond is broken, if the obligor become a stockholder in an incorporated company, carrying on that business within those limits, or an employee of such corporation.</p> <p>In a suit on such a bond, damages are recoverable, sustained even after the date of the writ up to the time of trial.</p>

Writ op Error, to set aside a judgment rendered upon the award of an arbitrator. The defendant in error was plaintiff in the original suit, which was replevin for 6000 mill logs. While that suit was pending, it was agreed between the parties to refer the action and all suits, claims and demands to the determination of Geo.

<p>On Exceptions from Nisi Prius, Cutting, J., presiding.</p> <p>Assumpsit.</p> <p>The writ contained this count alone. “ Eor that said defendant, at said Perry, on the day of the purchase of this writ, being indebted to the plaintiff in the sum of §55, according to the account annexed, and for so much money before that time by the plaintiff paid, laid out and expended for the said Merrill, at his request, and for a like sum for services performed by plaintiff for the said defendant, at his like request, in consideration,” &c.</p> <p>This account was annexed: —</p> <p>“ To your proportion of costs and expenses of suit, Wheeler ais. v. Nichols, and interest to this date, $55,10.”</p> <p>No bill of particulars was furnished, though the defendant called for it before the trial.</p> <p>When plaintiff stated his case to the jury, he claimed that defendant was bound to pay his proportion of $156, being the balance of a certain execution, Wheeler if ais v. Nichols, also his proportion of $90 as counsel fees, for defending the suit against Nichols, and that his proportion of the whole was $48,50, with interest from the time of demand, amounting to the sum named in the writ.</p> <p>The plaintiff, a deputy of the sheriff Nichols, attached a stock of goods as the property of Cornelius Bedloe & al., upon sundry writs against them, the last attachment being in favor of defendant. This stock was mortgaged to Wheeler & ais., and the mortgagees sued the sheriff, and recovered their value. The sum recovered was $156 above the net proceeds of the goods. In the defence of that suit the counsel fees amounted to $90,00; and when the proportions of the several attaching creditors of the Bedloes was ascertained, $48,50 belonged to defendant.</p> <p>Six creditors of the Bedloes, caused their goods to be attached, and on Sept. 11, 1847, their attorneys gave plaintiff, who was a deputy and performed that service, an indemnity for so doing.</p> <p>This paper was read to the jury against the objections of defendant.</p> <p>Plaintiff offered in evidence, the writ in which defendant sued the Bedloes, on which was a return of plaintiff that he had attached the stock subject to five previous attachments.</p> <p>Ho also introduced the other writs and judgments against them.</p> <p>The plaintiff also called Geo. Walker, Esq. as a witness, who testified that defendant brought to the law firm, of which he was a member, a writ ho had made against the Bedloes and wanted it secured if it could be done, and that we were to go on with the suit, if there was a reasonable probability of success.</p> <p>They advised him to attach and summon the mortgagees as trustees, which he said he would have done. He never informed defendant that there must be an indemnity to the officer, or that one had been given until after the termination of the sheriff suit. The officer required no indemnity at the time of the attachment and none was given.</p> <p>It was also proved, that the judgment against the sheriff had been satisfied mostly by Nichols, but some small sums had been paid by plaintiff.</p> <p>The defendant proved, that one Clapp had been put in keeper of the goods, under an attachment made prior to any of those above named, and that before the attachments herein named, he was in charge of them in behalf of the mortgagees.</p> <p>He also showed by the dockets of the Court, that at the term his action was entered, it was not continued, nor was any judgment entered up in the case. At the succeeding term, under this action was written, “ misentry.”</p> <p>After the evidence was closed, and the defendant’s counsel was about to address the jury, the plaintiff’s counsel stated to him, that he should claim to recover the fees of plaintiff in serving the defendant’s writ v. Bedloe ¿y al.</p> <p>The counsel for defendant requested the following instructions : —</p> <p>1. That the officer having in July, 1847, made his return on attachments on these writs, the rights of the parties were fixed, and that the sheriff would be liable to. plaintiffs in said actions, if the officer should, in the following September, give up the attachments, when he had a right to hold them.</p> <p>2. That Bradbury & Walker could not bind the defendant by entering into such a stipulation, as that given to plaintiff Sept. 11, 1847.'</p> <p>3. That there was no necessity of giving any such stipulation, for the returns held the officer, in case the mortgagees had not a paramount title.</p> <p>4. That if the jury believe from the evidence, that the instructions to Messrs. B. & W. by defendant were, that they should not go on with the suit, unless there was a good prospect, or a reasonable prospect of success, in securing the debt, and if it became manifest before and on the 11th day of September, 1847, that the proceeds of the attached property could not pay the claims in the suits, when there were preceding attachments, and that they would absorb the proceeds thereof, they, said B. & W., had no right to go on, and subject the defendant to costs, in this manner.</p> <p>5. That unldss defendant had authorized his said attorneys to bind him by such stipulations, or had assented to it afterwards, he was not bound thereby.</p> <p>6. That before the plaintiff could have a right to recover in this suit, he must prove by satisfactory evidence that he had paid the sum of $156, the balance of the execution, Wheeler v. Nichols, over the net proceeds of the attached property; and also the sum of $90 for counsel fees, said to be incurred in the defence of that suit.</p> <p>7. That the plaintiff cannot recover for any thing, but what is included in the account annexed to the writ; that lie lias no right, in this action, to recover fees for serving the writ, Merrill v. Bedloes.</p> <p>8. That there was nothing in the case from which the jury would have a right to infer, that the claim of the Frontier Bank was to be thrown ont, or overlooked, in ascertaining whether there would be funds out of the proceeds of the attached property to pay any thing on Merrill's claim.</p> <p>9. That plaintiff is not entitled to recover, unless defendant is bound by the contract purporting to be signed in his behalf by Bradbury & Walker.</p> <p>The Court declined to give either of the desired instructions, except so far as they are contained in the following instructions to the jury: — that the plaintiff might recover the sum of $6, his fees for the service of the writ against Bedloe, provided, the evidence satisfied them that he performed that service; that attorneys could only bind their clients to the extent and within the scope of their instructions, that beyond that they might bind themselves, but not their clients; that if the jury believed from the evidence, that Merrill’s instructions to Bradbury & Walker were, that they should not persevere in the attachment of the Bedloe goods on his writ, and in the prosecution of the suit, unless there was a good prospect of success, and if upon the eleventh day of September, the day the writing given to Nutt, the plaintiff, was signed, the attoi’ncys of Merrill knew, or might have known, that the sales of the attached property would not, or probably would not, be sufficient to pay the judgments to be recovered in the suits, where the attachments preceded Merrill’s, they were not authorized to bind the said Merrill by that writing; that from the position in which they stood to the suits, except that of the Canal Bank, being attorneys for plaintiffs, and from the fact that the sale of the goods took place in Calais, where they lived, the jury would consider whether they might not have known the facts touching the sale of goods and the net proceeds; that in regard to the suit of the Frontier Bank, the jury would judge whether there was any reason to apprehend that that suit could be successfully resisted ;■ that in connection with this, they would consider the fact that the demand sued in this action, was included in tire suits named in the writing given to Nutt, and that the witness, Walker, had not stated, that it was apprehended that suit might not be successfully prosecuted; that, as the declaration was .upon the money counts, they should infer nothing against the maintenance of this action, from the suggestion that the draft filed with the writ, did not appear to be due when that suit was commenced.</p> <p>The Court also instructed the jury that if defendant instructed the officer to attach the goods upon his writ, he would be responsible to the officer making the attachment, without any writing, the writing would specify the extent of his liability and the mode of apportioning it; but if the mortgagees, on 11 Sept. 1841, offered to take the goods or the net proceeds, that defendant would be liable to plaintiff for damages only, up to that period, provided, that the instructions did not authorize them to proceed further with the action and attachment.</p> <p>The jury returned a verdict for $58,05.</p> <p>Defendant excepted to the instructioms and the refusal to give those requested. He also filed a motion to set aside the verdict as against evidence, but no copy of such motion was found among the papers.</p>

<p>In Equity.</p> <p>On Bill, Answer and Proof.</p> <p>The substance of the bill is stated in the opinion of the Court, drawn up by—</p>

<p>On Exceptions from Nisi Prius, Rice, J., presiding.</p> <p>Trover. The writ in this case, returnable at Sept, term of the District Court for Washington County, 1850, described the defendant as belonging to the parish of St. George, in the county of Charlotte, and Province of Now Brunswick. It alleged a conversion at Calais of certain described property of the plaintiff, such as mill logs, lumber, potatoes, mill chain, mill and circular saws, mill bars, mill dogs, &c.</p> <p>A plea in abatement at a term of the District Court was filed which was in these words : —</p> <p>“ Rendol Whidden v. Stewart Seelye. And now the said Seelye comes and defends, &c., and says that the wrongs and injuries in the plaintiff’s writ and declaration mentioned, relate to the real estate situate in the county of Charlotte, in the Province of New Brunswick, and that he at the time of suing out said writ, was, and ever since has been resident in said county of Charlotte, where there are competent courts established for the trial of all causes of action arising therein, and that the cause of action mentioned in the plaintiff’s writ (if any there be) arose in said county of Charlotte. Wherefore he prays judgment if this Honorable Court here will, or ought, to take cognizance of the plea aforesaid, and for his costs.</p> <p>“ Stewart Seelye.”</p> <p>To this plea there was a general demurrer and joinder.</p> <p>At the Feb. term of the District Court, 1851, Hathaway, J., certified, that the defendant appeared in person and pleaded the above plea, and in support of it presented the affidavit of one Nichols, by whom it appeared that defendant resided in the Province of New Brunswick, and that all the property in controversy was, and had been in that Province, a part of it being in a mill in St. George, and the logs and potatoes taken from lands there situated; that he overruled this plea and ordered the defendant to answer further.</p> <p>To this order exceptions were taken and allowed.</p> <p>When this action came on for trial, the defendant pleaded the general issue, and filed a brief statement that he ought not to be held to answer, because the subject matters of the suit were never within this State, but belonged to the realty, and brought in issue the title to real estate in the Province of New Brunswick; also denying any conversion, and alleging that the hay and potatoes mentioned, grew upon land of defendant’s father, to which land plaintiff never had any title, and if he ever had any, he had parted with it before the potatoes were dug — that the saws, &c., were part of the same real estate.</p> <p>The property alleged to bo converted was in the Province of New Brunswick, and the evidence tended to show that the lumber was cut upon and taken from a tract of 2800 acres, in the parish of Pennfield, and the other property was upon the same tract.</p> <p>Plaintiff introduced in evidence a location ticket of those premises from the Grown Land Office in Fredericton, issued in 1835, to one Henry Seelye; also a mortgage deed of warranty from said Seelye to plaintiff, of the same, together with the bond it was made to secure.</p> <p>No evidence was produced as to the laws of New Brunswick.</p> <p>A portion of the evidence presented by defendant, was a memorandum made and signed by the plaintiff and Henry Seelye, on Dec. 2d, 1840, of the following tenor: —</p> <p>“Memorandum of an agreement by, and between Rendol Whidden on the one part, and Henry Seelye on the other. Said Seelye agrees to attend to the lumbering business on the east side of Lake Utopia, at the Lake mill, on the property belonging to Rendol Whidden at any services his business may require, for the sum of fifty dollars per month, to be allowed on settlement by said Whidden. The said Seelye further agrees to furnish four horses, for thirty dollars per month, and one yoke of oxen, for twelve dollars per month, equipped with all necessary geers, such as harnesses, sleds, chains, Ac., for the woods; - — also to furnish ten tons of English hay, for ten dollars per ton, the horses and oxen to bo' under pay as long as the hauling and sledding is good. And it is further understood that the said Seelye shall have one third of the profits arising from the lumbering operations, after all the expenses are paid, said Seelye paying one third the expenses, and a reasonable rent for the property. It is further understood that said Whidden shall have all the control of all the property and lumber to dispose of, for the benefit of all concerned. It is understood that the said Seelye boards himself at his own expense.”</p> <p>There was evidence in the case tending to show, that at some time there had been a grant of the greater part of the land described in the location ticket, to Henry Seelye, that this grant was in the possession of defendant; and on notice during the progress of the trial, it was not produced, and parol evidence of its contents was given, against the objections of defendant.</p> <p>It appeared also that plaintiff, in.Sept. 1849, had conveyed his interest in these lands to the St. Stephens Bank. ,</p> <p>Evidence was introduced tending to show, that defendant cut and took away lumber from these premises in 1845-6, also in 1849-50; and that he took possession of certain personal property on the premises which his father Henry had-previously delivered plaintiff.</p> <p>As to the contract between Henry Seelye and plaintiff, the defendant requested the Judge to instruct the jury that it constituted a partnership which continued until notice of a dissolution was given, or one of the parties had given evidence that it was dissolved; — that-, if a grant was found to have been made of the land, they would not be authorized to find for plaintiff for any logs cut by defendant prior to the date of the grant.</p> <p>The Judge declined this request, but instructed the jury that the contract was one of hire, and did not constitute a co-partnership; — that, as plaintiff claimed no ownership to the lumber or logs sued for, except by a title to the. land whence the property was taken, it was incumbent on him to satisfy them he was-the owner of the land.</p> <p>The defendant’s counsel contended, that as the liability of ■defendant to this action must be settled by-the laws of the British Province of New Brunswick, it was incumbent on plaintiff to show, as matter of fact, that by the laws of New Brunswick he was the legal- owner of the land from which the property was severed, and had the right to the possession of the property, at the time it was severed, and that the instruments offered by him as evidence of title were such in form and substance, as by the laws of New Brunswick, would pass the title to the land; — that all the legal requisites to pass the title by the laws of that Province had been complied with ; — that, as there was no .evidence before the Court or jury upon this subject, the fact could not be presumed to exist.</p> <p>On this part of the case the instructions were: —</p> <p>The plaintiff has attempted to show his title by deeds here exhibited. A mortgage and a bond secured by it. Instruments apparently in form convey real estate, and if you are satisfied that this deed does convey the real estate in question, under the laws of New Brunswick, you will so find. The mortgage deed, is one of warranty, and it is a principle of law here, which probably exists in all countries where the common law prevails, (which is understood to be the case in New Brunswick,) that if the grantor make a conveyance by deed of warranty, without any title, and after-wards acquires one, it enures to the benefit of the grantee. Whether this is so in the Province of New Brunswick, you will determine from the evidence in the case, and whether it does not warrant such a conclusion. The plaintiff would have a right to the possession of the tract covered by the location ticket, from the time it was indorsed to him, and a right to protect the property against all strangers to the title, and all persons except those who have authority to enter upon the land by the government, and in case his title was subsequently perfected by a grant of the fee, recover for any logs which were cut by defendant on said land without authority, after the transfer to him of the location ticket, and while he was in possession as mortgagee, but not after he had parted with his title, or when he was not in possession of the land.</p> <p>The jury returned a verdict for plaintiff.</p> <p>The defendant excepted and also filed a motion to set aside the verdict as against the, evidence and law of the case.</p> <p>1. The plea was sufficient in all matters of form, and should have been held good. Besides, a general demurrer does not reach any defects in matters of form. 2 Sup. U. S. Dig., 554, 769. Ibid, 556, pi. 824.</p> <p>If a sufficient answer appears in the facts stated in the pleas, every thing else is matter of form. Story’s Plead. 342.</p> <p>The demurrer admits the facts stated, and they arc sufficient to show that the Court ought not to entertain jurisdiction of the action. In such an action, the title of real estate in a foreign country ought not to be tried. The right of property in a chattel that has become such by severance from the freehold, where the title to the land is in contest, cannot be tried in a transitory action. Powell v. Smith, 2 Watts, 127; Baker v. Howell, 6 S. & R., 509; Miller v. Miller, 7 Pick. 133; 1 Chit. Plead., 362; Bigelow v. Jones, 10 Pick. 161. •</p> <p>2. But if the Court had jurisdiction, the verdict is against law. The facts in controversy were to be established by the law of New Brunswick. No evidence was given of them and plaintiff did not present a prima facia case. Story’s Conflict of Laws, § § 370, 424, 550.</p> <p>3. The verdict was not authorized by the evidence. The location ticket was null and void when indorsed — it was not assignable — it passed no rights to the plaintiff. The mortgage was not shown to be made according to the form required in that Province to convey real estate.</p> <p>4. The instructions given were erroneous — as to the effect of the mortgage deed, whether it conveyed the estate in question — and whether by the laws of that Province any title acquired after the mortgage, by Henry Seelye, enured to the benéfit of plaintiff.</p> <p>These and kindred matters were all left to the jury. And the .question, whether plaintiff was in possession, was left to them, when it was not even pretended that he had any but a constructive one by his deed. That’was a question of law to be proved as a fact. And then again the instruction that the instruments offered in evidence by plaintiff were apparently sufficient to pass title to real estate, was wrong, for there was nothing to measure this sufficiency by. Their sufficiency was matter of proof, and no proof was offered. U. S. An. Dig., 1850, Tit. Evidence, 111.</p> <p>When there is no proof to establish a fact, the jury should be so instructed. 13 U. S. An. Dig. Trial, 58.</p> <p>"The law of a foreign state must be proved as a fact. Haven v. Foster, 9 Pick. 112; 2 Stark. Ev. 568.</p> <p>There was error in the instruction that it is a principle of law, probably in all countries, &c. that when the grantor in a deed of warranty of land has no title, an after acquired title enures to the benefit of his grantee. Owen v. Boyle, 15 Maine, 147. Such is not the law of England, except in case of a feoffment. 2 Smith’s Leading Cases, 454, note; Doe, Ex dem., Oliver v. Powell, 1 Ad. <% Ellis, 531. Such is not the law of New Brunswick, as is decided in„Ker v. Wetmore, a case in relation to this identical land.</p> <p>Whether the location ticket was in force at the time it was indorsed, was an issuable fact, but the Court assumed it, and so were all the facts connected with it.</p> <p>So there was error in relation to the contract. When taken in connection with the acts of the parties and the testimony, it should have been left to the jury to say whether a partnership existed or not.</p>

On Exceptions from Nisi Prius, Cutting, J., presiding. Scire Facias. The plaintiff had sued one Williams, and ' summoned defendant as his trustee. On that suit defendant made a disclosure and was charged. A judgment by plaintiff was obtained, and execution issued and returned satisfied in part, by the sheriff.

On Exceptions from Nisi Prius, Appleton, J., presiding. Writ op Entry to recover possession of lot No. 7, in the 6th range, in the town of Charlotte. This action was commenced on Sept. 10, 1853. The general issue was pleaded, and a claim to betterments set up; also a title in the tenant, by possession in himself and those under whom he claims, for more than twenty years. A verdict was returned for defendant.

<p>In adjudicating by'the selectmen upon the question of insanity, when applied to for a warrant to send.a person to the insane hospital, they act judicially, and, of 'a case within their jurisdiction, a copy of their record is the legal evidence of their judgment.</p> <p>Such judgment cannot be impeached by parol evidence. If erroneous it may be reversed.</p> <p>And where a pauper, whose settlement is in another town, is thus adjudged insane and sent to the hospital, notice given of the expenses of commitment and payment thereof, will render the town where he has his settlement, liable to reimburse them as for any other supplies.</p>

On Facts Agreed. Assumpsit, on an accountable receipt to deliver the vessel, “ A. Houghton,” within thirty days, &c. One Cleland, built a barque at Robbinston, towards which the defendant made advances and became mortgagee. The plaintiff, being a constable of Eastport, and having a writ Ross against Cleland, attached the barque as his property, when defendant gave this receipt, to the amount of $500.

On Exceptions from Nisi Prius, Hathaway, J. presiding. Replevin, for 8000 box shooks. Defendant justified the taking of them, as a coroner, there being no sheriff of the county at that time, on several writs of attachment, against Daniel O. Wight, and also as holding them under direction of mortgagees of the same property.

On Exceptions from Nisi Prius, Cutting, J., presiding. Held: but could not say it was the same paper. This paper was offered and excluded by the Judge. He also read a deposition and papers attached to it, and also a paper signed by the defendants’ attorney. What these papers were, or the character of the deposition, does not appear, as they were not presented to the Court.

<p>Where the master sails a vessel on shares, but it does not appear that he had control oyer her, the owners may recover for her freight.</p>

<p>On Facts Agreed.</p> <p>Assumpsit, to recover expenses paid to the Insane Hospital for the support of Elizabeth Howard, whose legal settlement is in East Machias.</p> <p>This suit was commenced on Nov. 13, 1854, and the expenses were paid to the hospital on July 1st and 24th, 1854, for her support from May 23, 1850 to June 1, 1854, according to the account furnished.</p> <p>In November, 1849, Mrs. Howard was duly committed to the hospital by the selectmen of Eastport, under the' Act of 1847 relating to the Insane Hospital, and under that process has remained there ever since.</p> <p>In August, 1850, the plaintiffs commenced a suit against the defendants for the expense of her removal to the hospital, and for her support there until May, 1850. That action was defended both as to the legality of the proceedings in committing the woman to the hospital and as to her settlement.</p> <p>That action was not decided until the April term, 1854, when plaintiffs recovered the amount claimed and costs of suit.</p> <p>The regulations of the Insane Hospital require that the expenses of its patients be paid every six months, but in this case they were delayed at the request of plaintiffs, on account of the pendency of that suit.</p> <p>On July 1st and Aug. 1st, 1854, the overseers of the poor of Eastport notified the overseers of East Machias that they had been made chargeable for the support of Mrs. Howard by the Insane Hospital, and had paid them the sum sued for, setting forth the proceedings in relation to her, and that she remained at the hospital and requesting payment, and notifying them that they should look to them for any future payments they might be compelled to make.</p> <p>No other notice had been sent to the defendants excepting that anterior to the commencement of the former action against them.</p> <p>If, on these facts, the plaintiffs are not entitled to recover, a nonsuit is to be entered; if otherwise, a default is to be entered, and judgment for such sum as plaintiffs are entitled to.</p> <p>1. The plaintiffs in any event can only recover the expenses incurred within three months next before the written notice given to defendants; and the action must be brought within two years after the cause of action has arisen. R. S., c. 32, § 29. And this provision for notice applies to cases for the support of the insane, under § 11 of c. 33 of Acts of 1847.</p> <p>2. The notice given prior to the commencement of the first suit had had its full effect and operation, and no action can be maintained for subsequent expenses without a new notice. And the notice must bo within three months after the expenses are incurred, and not within three mouths after the expenses are paid. Greene v. Taunton, 1 Greonl. 228; Sidneys. Augusta, 12 Mass. 316; Hallowell v. Harwich, 14 Mass. 188; Walpole v. Hopkinton, 4 Pick. 357; Palmer v. Dana, 9 Met. 5S7.</p> <p>- 3. But if no new notice was necessary, then the recovery can only reach back two years before suit. The statute and cases cited confirm this position.</p> <p>cited R. S., § 11, c. 33 of Acts of 1847; Worcester v. Milford, 18 Pick. 379; R. S. of Mass, c. 48, § 10; Cooper v. Alexander, 33 Maine, 453; Insane Hospital v. Belgrade, 35 Maine, 497; Eastport v. East Machias, 35 Maine, 402.</p>

On Facts Agreed. Replevin, for a quantity of wood, staves, boots, shoes and sundry other articles. The defendant was a constable of the town of Eastport, and- authorized to serve precepts in civil actions where the ad damnum did not exceed $500. He attached the property replevied on a writ against William W. Bucknarn. The plaintiff claimed title to the property by a mortgage from said Bucknarn, to secure a debt of $3,000.

On Facts Agreed. Assumpsit, to recover for supplies to paupers, alleged, to have their legal settlement in Lisbon. The plaintiffs paid for support of the paupers §134,GO for board from April 1, 1851, to April 1, 1852, and for board and other necessaries from April 5, to Aug. 23, 1852. This action was commenced on October 6, 1853.

On Report from Nisi Prius, Appleton, J., presiding. Assumpsit, to recover of defendant $31,21, that sum being plaintiff’s proportion of the amount in defendant’s hands, as executor, &c., and due to the creditors of the testator on the settlement of his account of administration, as appeared from a decree of the Probate Court. A larger sum was allowed plaintiff’s intestate by the commissioners.

On Exceptions from Nisi Prius, Cutting, J., presiding. Assumpsit, for materials furnished for and on account of a vessel building and standing on the stocks in defendant’s ship-yard, on which plaintiffs claimed a lien for the amount of said materials. An attachment of the vessel on the stocks was made in the manner provided by law for attachments to secure liens for materials furnished.

<p>Where the parties to a suit claim title to the premises from the same grantor, the demandant by a mortgage and the tenant by a later quitclaim deed earliest on record, on proof that the latter, prior to the delivery of his deed, had notice of the existence of the former title, the demandant will be entitled to recover.</p> <p>And the common grantor of the parties is a competent witness by whom to prove such notice, without being released on his covenants.</p>

<p>On Report from Nisi Prius, Appleton, J.,^presiding.</p> <p>Petition, for a writ of certiorari, to quash the proceedings of the. County Commissioners in their approval and allowance of a town way.</p> <p>. The selectmen of Guilford laid out a town way on application of some of their citizens, after posting up the notices required by law, and, describing the courses' and admeasurements, and lodged such description with the town clerk seven days before the meeting of Sept. 13, 1852, as was offered to be proved by one Joseph Kelsey, if such testimony was admissible.</p> <p>A towh meeting was held by' the inhabitants of Guilford on Sept. 13, 1852, and article third in the warrant was, “to see if the town will accept of a road leading from the Grover school-house to the county road near William Eells.” The town “ voted to pass the third article in the war-' rant.”</p> <p>A petition was presented the Commissioners representing that the selectmen of Guilford had laid out the road, (describing it by courses and admeasurements) which concluded thus: — “And the inhabitants of said town of Guilford, at a legal town meeting, held, at Guilford on the 13th day of September, 1852, with an article in the warrant for that purpose, did unreasonably refuse and delay to approve and allow said town way a3 above described. We therefore pray your honors to approve and allow said town way as laid out by said selectmen and direct said laying out to be recorded by the clerk of said town.”</p> <p>After reciting the petition, order of notice, &c., the records of the Commissioners state, “after which view a hearing of the parties and their testimony was had, &c., and after a full -hearing had and mature consideration, we adjudged and do hereby adjudge and determine, to approve and allow of the way in said petition described, as laid out by the selectmen of said town of Guilford, and we, the said Commissioners, do hereby direct, that the laying out of said road, as named in said petition, and the acceptance of the same, be duly recorded by the clerk of said Guilford.”</p> <p>The petitioners for the writ of certiorari allege several errors in the proceedings, two of which need only to be stated.</p> <p>1st. That no legal proceedings had taken place by the town of Guilford, or by the selectmen thereof, to give the County Commissioners jurisdiction in the premises.</p> <p>lltli. That it does not appear by any record of said town of Guilford, that said way was ever offered to said town for approval and allowance.</p> <p>The Court were to make such decision and render such judgment as the legal rights of the parties may require.</p> <p>As to the 1st and 11th errors assigned, it does not appear of record, that any laying out of the road in question, had been filed with the town clerk as provided by R. S., c. 25, § 29. The Commissioners were not authorized to proceed until such laying out and filing was established by legal evidence before them; it was not even alleged in the application on which they acted, they therefore had no jurisdiction, and their proceedings were erroneous.</p> <p>There is no evidence that the road, with its boundaries and admeasurements, was ever offered to the town for acceptance and allowance. This is essential to give the Commissioners jurisdiction. The records of the town, at most, state that a road having the same termini, with the road in question, was offered to the town for acceptance, and that the town voted to pass the article in the warrant, but no records of the town show, that the road “ with the boundaries and admeasurements” were ever reported or offered to the town for acceptance and allowance. Indeed, the article in the warrant does not state that the road was laid out by the selectmen. Until all this was done and proved, and the town had refused to accept and allow the way so reported, the Commissioners could not act. R. S., c. 25, § 29 ; Lewiston v. County Commissioners, 30 Maine, 19; Small v. Pennell, 31 Maine, 267.</p> <p>But the fact whether the County Commissioners had jurisdiction, must appear from their records; and they show no sufficient preliminary proceedings, nor do they allege the refusal of the town to accept and allow any way legally offered to the town for their acceptance. Plummer v. Waterville, 32 Maine, 566.</p> <p>Was the requirement of § 29, c. 25, R. S., in relation to this road, complied with? The objection is, that the matter there required, does not appear of record. Why should it ? No such record is required, but simply, that the laying out should be “filed.” What was the object of that requirement? Merely that it should be left or deposited with an officer of the town that it might be examined by persons interested therein, and not recorded, for at the time of filing it could not be known what the action of the town or County Commissioners might be.</p> <p>The laying out of the road being duly filed, according to the testimony of Kelsey offered in the case, we say the article in the warrant for the meeting, when it was acted upon, contained a sufficient description of the road to bring the matter properly before the town. It gave the termini, and that was enough. There could be no mistake as to what road was meant. The objection is, that it was not reported to the town with the boundaries and admeasurements. But the answer is, these were definitely set forth in the selectmen's report, and filed with the clerk, and to all intents and purposes was so reported on the day of the meeting, because it was in the custody of the proper officer, whose duty it was to present it on that occasion.</p> <p>The first error alleged is contrary to the fact, as the petition to the Commissioners does allege it, and the record shows that the Commissioners, after a “ full hearing and mature deliberation approved the way, as laid out by the selectmen, which they could not have done without proof of the fact.</p> <p>There are but two eases in which the County Commissioners have jurisdiction in the location, alteration or allowance of town ways: one by § 32, part 2, c. 25, R. S., when the selectmen unreasonably refuse and neglect, Ac., they may cause them to be “ laid out or altered,” in which case the Court records must of necessity contain a perfect description of the road, for there has been no prior laying out, and because there has not, an appeal is provided. The other case is by § 34, when the town shall in like manner “ refuse or delay to approve and allow any town way or private way laid out or altered by the selectmen thereof,” Ac., the Commissioners may “ approve and allow, (not lay out or alter,) of the way as laid out or altered by the selectmen, and direct the said laying out (that by the selectmen) ,to be recorded ; which shall have the like effect as if accepted by the town and recorded. The report or laying out by the selectmen is the basis and description of the way with its boundaries and admeasurements, and if that is perfect, (as in this case,) then the order of the Commissioners and the Selectmen’s report recorded with the records of the town (which'it is the town clerk’s duty to do,) makes a perfect location of the town way. There is no necessity that the Commissioners’ records shall contain a full and minute description of the road, as in case of location of a highway or laying out of a town way, for the reason that it will so appear in the selectmen’s report and the town records. The action of the Court does not change the character of the road from that -of a town way to a county way, and hence no reason exists for the county records showing the location, and the statute does not require it, but that the town record shall, as required by the statute.</p> <p>We further contend, that the provisions of § 29, are independent of, and have nothing to do with the question of jurisdiction of the County Commissioners;. they have reference alone to the action of the town. All the requisites to jurisdiction of the County Commissioners are fully enumerated in § 34, none of which are contained in § 29. The case of Lewiston v. County Commissioners, 30 Maine, 19, is not authority for the positions taken on the other side. It turned, upon a different point.</p> <p>The granting or withholding of the writ of certiorari, is 'a matter entirely within the discretion of the Court; and according to the uniform practice in this State, it will not be granted if sufficient appears upon the records of the inferior Court to show that it had jurisdiction in the premises, though their proceedings may not have been in all respects technically correct, and in the absence of proof that injustice has been done.</p> <p>Bath B. & T. Co., Petitioners, 8 Maine, 292; Lisbon v. Merrill, 12 Maine, 210; Cushing v. Gray ais., 28 Maine, 9; West Bath, Petitioners, 36 Maine, 74; Plummer v. Waterville, 32 .Maine, 566.</p>

On Report from Nisi Prius, Appleton, J., presiding. Petition, for a writ of mandamus to the Commissioners of Piscataquis County, to require them to declare C. H. B. Woodbury, County Treasurer for 1855. The defendants appeared at the Eeb. term, 1855, and filed a motion that the petition and rule might be dismissed for these reasons : — 1. That the office of County Treasurer is filled by annual election, and that this Court will not issue the writ of mandamus in such case. 2.

On Exceptions from Nisi Priiis, Appleton, J., presiding. Assumpsit, for use and occupation. The writ was entered at the Feb. term, 1854, at which term, under defendant’s name, was entered upon the docket Abbott, specially,” and the action was continued that and the succeeding term.

On Report from Nisi Prius, Appleton, J., presiding. Assumpsit, to recover $600, for liquors alleged to be sold by defendant, as the agent of plaintiffs. The writ also contained a count for money had and received, and was dated in July, 1854. The general issue was pleaded. Plaintiffs to support their action introduced extracts from the records of the selectmen of Foxcroft, as follows: — “May 28, 1853. “The selectmen appointed Wm.

On Report from Nisi Prius, Appleton, J., presiding. Trover, to recover the value of four air tight stoves, one cupboard, one cistern, one door bell, three sets of fire brasses and one door knob. The plaintiff claimed title to this property by a levy on the house in which they were alleged to belong, as the property of defendant. As to the door knob and fire brasses, the evidence failed to show that defendant took them away.

On Pacts Agreed. Trover, for a house. One Henry Hill agreed with defendant to purchase a parcel of land, of which the latter engaged to give a bond, but never did. Hill entered upon the land, cleared a part of it, and built the house in controversy. It was unfinished and not underpinned, and in that state he left it, and went to another State.

On IIepqrt from Nisi Prius, Cutting, J., presiding. Trespass quare clausum. This action was originally brought before a justice of the peace. The declaration was in form quare clausum, and alleged sundry matters of aggravation, in damaging, spoiling and carrying away certain personal property belonging to plaintiff.

Bill in Equity, praying that defendants might be enjoined from completing piers upon their land overflowed by a mill-dam, and from constructing booms upon the mill-pond where the complainants bad been accustomed to boom the logs for supplying their mills. There was a hearing of the case at Nisi Prius, before Hathaway, J., when a temporary injunction was granted. The respondents subsequently filed a demurrer to the bill, and the case came up for argument before the full Court.

<p>When a creditor receives a partial payment of a debt not due, he is bound to apply it according to the wishes of his debtor.</p>

On Report from Nisi Prius, Appleton, J., presiding. Assumpsit, to recover for money paid for the use of Daniel Spofford'. This suit was commenced against Daniel .Spofford, who has deceased, and his executors now defend. The writ was dated Jan. 8, 1851, to which was pleaded the general issue and the statute of limitations. Plaintiff and Spofford were tenants in common of two-thirds of a grist-mill and appurtenances, with other owners of the remaining third.

On Report from Nisi Prius, Hathaway, J., presiding. Writ op Review. The defendant sued out a writ of replevin against the plaintiff in review, for lumber, before a justice of the peace, in which the plaintiff in review was defaulted and judgment was rendered for §20 damages, with the costs of suit, and execution issued therefor. A review was granted, and on trial, the original plaintiff recovered the lumber and one cent damages.

On Report from Nisi Priiis, Appleton, J., presiding. Debt, on a poor debtor’s relief bond. The defence was, that one of the conditions therein named had been fulfilled. Defendants applied to a magistrate in August, 1853, to issue notice to the creditor in the execution, which was served on Aug. 23, 1853, by the sheriff, “by leaving a copy at the last and usual place of abode of the creditor.” The justices administered and certified the oath required by law on Sept. 10, 1853.

On Exceptions from Nisi Prius, Appleton, J., presiding. Trespass quare clausum, against seven defendants. The writ was served by the sheriff of the county. Erastus Redman, one of the defendants, was his deputy. At the term the writ was returned, Jesse Dutton, another of the defendants, pleaded in abatement of the writ that it was served by the sheriff, not being either a coroner or constable, and Erastus Redman, one of the parties, being his deputy.

<p>The actios, of accmmt is a form recognized by our statutes, and maintainable in our Courts, where the relations of the parties authorize the one to demand of the other to render an account.</p> <p>In such action two judgments are rendered, one interlocutory, determining that defendant shall account; the other final, as to the amount found due by the auditors.</p> <p>Pleas in bar of the action must be filed before the interlocutory judgment.</p> <p>Where no issues of fact are made before the auditors, and no charge of misconduct or partiality, their report is conclusive.</p> <p>Auditors appointed under § 49 of c. 115, B. S., are the proper tribunal in all •actions of account. And although they refuse or neglect to report the facts by them found, when requested by one of the parties, no exceptions lie. The law requires of them, no such action.</p> <p>Where no issues are made up before the auditors, none can afterwards be made on the presentation of their report for acceptance by the Court.</p>

On Report from Nisi' Prius, Hathaway, J., presiding. Assumpsit, on account annexed, for recording births and deaths in the town of Ellsworth. The plaintiff was chosen and qualified as clerk of that town for the years of 1852 and 1853.

On Exceptions from Nisi Prius, Rice, J., presiding. Trespass quare clausum. Both parties claimed title to the locus in quo, and the question in dispute was as to the division line between the owners of contiguous lots in the town of Appleton. The strip in dispute was about sixteen rods wide at one end and eleven rods at the other. The lots on either side were formerly known as the John Newbit on the north, and Christopher Newbit on the south.

On Report from Nisi Prius, Tenney, J., presiding. Trespass quare clausum. A road leading from Knox corner .to Freedom village had been made and traveled by the public for many years. As part of this road the town of Freedom had built a bridge over Sandy stream. After the bridge had been so built, kept in repair, and used as a public highway for eighteen years, the plaintiff fenced it up and obstructed the public travel.

<p>An administrator of an insolvent estate is entitled to the aid of the equity-powers of the Court, to obtain property belonging to the intestate, which creditors may lawfully claim in satisfaction of their debts when the same is held in fraud of their rights.</p> <p>But before resorting to the Court in equity, his remedies at law must first be exhausted.</p> <p>Thus, where such administrator attempts, through the equity side of the Court, to reach the avails of property belonging to the estate, fraudulently conveyed, it must appear: —</p> <p>1st, That the suit is for the benefit of all the creditors whose claims are established.</p> <p>2d. That the creditors have obtained judgment, or that their claims have been allowed by the commissioners of insolvency, and not objected to by the administrator.</p> <p>3d. That the administrator has availed himself of the provisions of law for summoning before the Probate Court, the suspected parties.</p> <p>•4th. That he tas brought a suit at law for the recovery of the property so conveyed.</p> <p>5th. That he, or those he represents, have exhausted their remedy against the parties for aiding or assisting in fraudulently concealing- the property of the estate.</p>

On Report from Nisi Prius, Tenney, J., presiding. Assumpsit. The writ contained throe counts. First, on an account annexed for a balance of $2469,67. Second, upon a contract for the same sum. Thir The road commissioners of Belfast contracted with plaintiff, on May 1, 1849, to keep in repair all the highways of that town for the term of five years, excepting the village district, and he gave a bond with surety for the faithful performance of his contract.

On Report from Nisi Prius, Tenney, J., presiding. Assumpsit. The writ was dated May 13, 1853, and contained one count on an account annexed, and another on an insimul computassent. Plea, infancy. It appeared that Robert W. Gilmore^ the defendant, purchased sundry goods of plaintiffs, and kept a store in another town where he sold the same. His dealings commenced in July, 1851, and terminated Eeb. 5, 1853.

On Facts Agreed. Writ of Entry to recover a farm occupied by tenant, and for rents and profits of the same for six years prior to the date of the writ. The action was commenced on July 20, 1853. On Oct. 27, 1841, tlie tenant being owner of the premises, conveyed the same to demandant by deed of that date. The consideration expressed in the deed was $1814,63, and the farm was worth $2500.

<p>A town can maintain no action against an individual for destroying a bridge being part of one of their highways, which they were bound to keep in repair, until they have repaired it, or incurred some expense in consequence of the wrongful act.</p>

On Facts Agreed. Assumpsit, to recover the amount, with statute interest, of sundry bank bills issued by defendants. • This writ was made on March 16, and served March 31, 1855. The bills declared on were duly presented for redemption, and protested for non-payment.

Petition for a writ of certiorari. A fire broke out in the village of Frankfort, on which occasion a building, belonging to one Daniel Tobey, was torn down to prevent the… Held: that it was competent for one selectman, when there were no firewards, and only one selectman present, to direct the pulling down or demolition of a building, under the circumstances of the case at bar, and bind the town thereby; and a majority of the board held, that Sproule gave such directions.

On Exceptions from Nisi Prius, Tenney, J., presiding. Trespass, qúare clausum. The suit was first brought before a magistrate, and on a plea of title, was transferred to the higher Court. The plaintiff offered an office copy of a deed of the locus in quo, from one Samuel Bird to himself, dated May 20, 1819, and recorded Juno 21, 1831. The grantor, one of the subscribing witnesses, and the magistrate, before whom it was acknowledged, were dead.

<p>On Report from. Nisi Prius, Appleton, J., presiding.</p> <p>Writ op Entry.</p> <p>Plaintiff claimed title to the premises as assignee of a mortgage given by defendant to one Joseph Pierce on Oct. 20, 1819, to secure the payment of three promissory notes of $84,16 each, one payable in June following, and the other two in one and two years from the same June.</p> <p>Joseph Pierce died prior to July, 1828, when Joseph H. Pierce was authorized to act as his executor.</p> <p>Joseph H. Pierce was lost at sea the last of the year 1832.</p> <p>Administration de bonis non, of Joseph Pierce, was granted to Henry A. Pierce, in the county of Waldo, in 1853, and he assigned the copy of the mortgage and note to plaintiff, the original not being found.</p> <p>It appeared by the testimony of Henry A. Pierce that he had searched among the papers of Joseph Pierce, but could not find the mortgage or notes. Sundry evidence 'was objected to for want of evidence of the loss of the papers.</p> <p>To rebut the presumption of payment of the notes, the plaintiff introduced the deposition of one Overlook, tending to show a conversation between Joseph Pierce and defendant, in 1829, when the defendant proposed to buy the premises; also the answers of defendant in an equity proceeding between these parties as to this land, tending to show that he claimed to hold the premises by possession.</p> <p>The defendant showed by the records of Lincoln county that the last two notes described in the mortgage were sued soon after they became due, and judgment obtained, and the executions issued thereon satisfied.</p> <p>The case was submitted to the full Court, whether the plaintiff could maintain this action, and if the evidence on the part of defendant would warrant the presumption of payment of all the notes; and that such judgment should be entered as the admissible testimony required.</p> <p>cited Stark, on Ev. part 4, page 1091.</p> <p>cited Joy v. Adams, 26 Maine, 330; and Sweetser v. Lowell, 33 Maine, 446.</p>

On Exceptions from Nisi Prius, Tenney, J., presiding. Trespass quare clausum. The plaintiff’s title by deed was through several mesne conveyances; the first from John Hunter in 1801, the last being from Andrew Bird to him, dated Oct. 2, 1843. He also proved that he had been in possession of the premises since 1829 ; but there was no evidence whatever to show an ouster of others who had-title to any portion. The defence was, that defendant was tenant in common.

On Report from Nisi Prius, TenNey, J., presiding. This was an action of the Case for neglecting and refusing to raisé the draw of the bridge, when plaintiff wished to pass with his vessel. Defendants are proprietors of a bridge built over tide waters in Belfast, under a charter, while this State was a part of Massachusetts.

On Facts Agreed. Assumpsit, on a receipt given by defendant to the plaintiff, to keep and re-deliver the brig “John Hathaway,” &c., “ which property the said officer has taken by virtue of a 'writ against Daniel Millett, and to enforce a lien provided for in c. 125, E. S., in favor of Samuel Carter,” &c. Defendant was owner and builder of the brig, and contracted with one David Millett to perform a certain part of the work. This job was performed and Millett paid.

On Exceptions from Nisi Prius, Tenney, J., presiding. Trover, for a mare.

Trespass on the Case. This action was commenced Nov. 22, 1852.

<p>On Report from Nisi Prius, Howard, J., presiding.</p> <p>Assumpsit, to recover of defendant as an alleged subscriber for three shares of plaintiffs’ stock, the balance due on such shares, after their sale at auction for non-payment of assessments thereon, with costs of sale.</p> <p>A subscription book was offered in evidence, upon which was found the defendant’s name, with the figure 3 set against it.</p> <p>Upon the question whether the defendant signed this paper, there was much conflicting testimony.</p> <p>The records of the directors as to the assessments made, being to the amount of §50, on each share, were presented, no part of which were paid by defendant.</p> <p>The charter of the company provided, that in case of the failure of the subscribers to pay the assessments made upon their shares, after such notice is given, as shall be prescribed by the by-laws of the corporation, the directors may order the treasurer to sell such share or shares at public auction to the highest bidder, and the same shall be transferred to the purchaser, and such delinquent subscriber shall be held accountable to the corporation for the balance if sold for less than the assessments due thereon.</p> <p>The by-law established under this section was as follows:</p> <p>The president and directors may, from time to time, make such equal assessments on all the shares in said corporation, as they may deem expedient and necessary for the purposes of the company; and may direct the same to be paid to the treasurer, at such time and place as they shall deem proper, governing themselves as tó the- amount of assessments, the allowance of interest, and in all other respects, by the terms, conditions, and regulations prescribed by the persons having charge of the original subscription books for stock, before the opening of said books; and the treasurer shall give notice of the amount-per share of every such assessment, and of the’ time and place, when and where the same will be due and payable, by advertisements, to be printed in one or more newspapers to be printed in Portland and Saco, at least thirty days before the day fixed for payment thereof. And if any stockholder shall neglect or refuse to pay any assessment or assessments on his share or shares in said company, for the space of thirty days after the first publication of such notice, the directors may order the treasurer, after giving notice (as hereinafter provided,) of the sale, to sell any or all such shares, by public auction, to be held in said Portland, to the highest bidder; and the same shall accordingly be transferred by the treasurer to the purchaser, who shall be entitled to receive a certificate thereof. And notice of every such sale shall be given by the treasurer, in one or more newspapers, printed in Portland, at least thirty days before the day of such sale, designating the time and place thereof, and the shares to be sold.</p> <p>At a directors’ meeting, in Sept. 1850, it was “voted that the president together with the treasurer, be a committee to adopt such measures as shall promise to be most effective for collecting the arrearages of subscriptions due and enforce such collection by sales of stock or preliminary employment of an attorney, to collect said dues, or in both ways as said committee shall think proper: and that the report of the treasurer of the list of delinquent subscribers be referred to said committee.”</p> <p>It was in evidence that notice of the assessments was given by the treasurer, as required in the above by-law, and that in pursuance of and claiming authority from the above vote of Sept., 1850, and with the assent of the president, the treasurer advertised and sold at auction, in form as prescribed by the by-law;s, the three shares subscribed for by defendant, and transferred them to the purchaser, at the sum of $20 per share, and the costs of sale were $1,25; and that the. avails were accounted for to the company.</p> <p>The case was withdrawn from the jury and submitted to the full Court to settle the facts and the law.</p> <p>after arguing from the evidence what the facts were in the case, raised- several objections to the maintenance of the suit, among which was this. The sale is illegal because not ordered by the directors.</p> <p>It is unnecessary to cite authorities to the principle, that powers derived from, and proceedings based upon statute provisions exclusively, must be exactly in conformity to those provisions, or they are wholly invalid.</p> <p>The fifth section of plaintiffs’ charter provides, that .in case a subscriber or stockholder shall neglect to pay any assessment on his shares for thirty days after notice has been given of such assessment, the directors may order the treasurer to sell such shares at public auction, &c.</p> <p>Now the sale by the treasurer must be made upon the order of the directors. An order of sale by any other organ or committee, acting under discretionary powers, would not conform to the requirements of the statute. The case of P. S. P. R. R. Co. v. Graham, 11 Met., is in point upon this objection. The power of the directors to order a sale by the treasurer, is not a power that can be delegated. The statute contemplates the individual management and decision of the directors, not that of a substitute, to order a sale. As well might all the powers of directors be delegated as any one, and the whole theory of administration contemplated by a charter, changed. The directors have not power to order the president to sell the stock of delinquent subscribers, as the charter gives no such authority. No more have they power to order the president and treasurer jointly, to sell it. Such is not the contemplation, or authority of the charter. And where two are thus ordered to do an act, neither is competent to perform it alone. Its performance by one, is invalid. As where by a resolution of a board of bank directors, the president and cashier were empowered to borrow money for the bank, the president alone is not competent to act. Ridgeway v. Farmers’ Bank, 12 Serg. & Rawle, 256. In this case, if power could be delegated to the president and treasurer jointly, to sell a delinquent subscriber’s stock, the sale ordered and advertisement of sale should have followed the authority. It not having done so, the sale made is void.</p>

On Report from Nisi Prius, Howard, J., presiding. Assumpsit, upon a promissory note of four hundred dollars.

<p>On Report from Nisi Prius, Howard, J., presiding.</p> <p>Indictment, for obstructing an highway in Cape Elizabeth, by removing a bridge.</p> <p>The County Commissioners of Cumberland, under their general powers, located a highway in Cape Elizabeth over what is called a creek, and the bridge was built ton feet above its bed. At the place of the bridge, the channel was twenty-three feet in width at ordinary flood tides; but at high water mark, is nearly twenty-four rods.</p> <p>The depth of water in the channel, at the bridge, at ordinary flood tides, is from five to six feet; at some spring tides, from seven to ten feet.</p> <p>The defendant owned land some sixteen rods above the bridge, and adjoining the creek.</p> <p>Gondolas and canal boats loaded and sail boats have occasionally, but not frequently, been floated to his land. The bridge obstructed such craft.</p> <p>After the defendant had taken away the bridge, he floated his schooner, of about forty tons burden, up between the abutments and about three hundred feet above, where she lay for the winter, generally afloat at high tide.</p> <p>From the bridge across the flat to the channel of Fore river, was something over one-half mile.</p> <p>Some of the evidence tended to show that vessels not drawing more than eight feet, might be built on defendant’s land on this creek and launched and floated to the sea.</p> <p>It was agreed to submit the. case to the decision of the full Court. If the creek is navigable in such a sense that the County Commissioners could not legally locate a highway across it without authority from the Legislature, and if the facts reported would constitute a good defence, a nolle pros, is to be entered; otherwise, the case is to be remanded and defendant to plead “guilty.”</p> <p>1. The highway, for the obstruction of which, by pulling down a bridge, the defendant was indicted, was constructed over tide and navigable waters, and the County Commissioners had therefore no power under their general authority so to construct said road. Commonwealth v. Inhabitants of Charlestown, 1 Pick. 180; Rowe v. Granite Bridge Corporation, 21 Pick. 344; Commonwealth v. Coombs, 2 Mass. 489; Brown v. Chadbourn, 31 Maine, 9; Inhabitants of Arundel v. Hugh McCulloch, 10 Mass. 10.</p> <p>2. The defendant, owning land above the bridge and near to it, might lawfully remove said bridge in order to enjoy his right to navigate the water to his own land. Inhabitants of Arundel v. Hugh McCulloch, 10 Mass. 10.</p> <p>3. If the stream or inlet over which said highway, for the obstruction of which the defendant is indicted, was built, was not strictly navigable, yet being inherently, and in its nature, capable of being used for the floating of vessels, boats, rafts or logs, it is subject to the public use as a passage-wav, and could not, therefore, lawfully be obstructed by the Commissioners under their general authority. Brown v. Chadbourn, 31 Maine, 9.</p>

On Exceptions from Nisi Prius, Howard, J., presiding. Indictment.

On Exceptions from Nisi Prius, Howard, J., presiding. Trespass on the case, against Peter S. Ellis, Ephraim Woodman, Oliver O. Woodman, John S. Abbott and Robert A. Bird. The writ alleged in substance that, on Sept. 25, 1841, the plaintiff gave his negotiable note to Benj. H. Ellis, since deceased, for $1500, payable in one year, in satisfaction of a claim of W. Weston & Co., against him, also his bond for the same sum in four months.

<p>On Report from Nisi Prius, Howard, J., presiding.</p> <p>Assumpsit, to recover the balance due on two shares of the stock of the Y. & C. Railroad Company, subscribed for by defendant, after their sale at auction for alleged non-payment of assessments thereon, and the cost of sale. The general issue was pleaded.</p> <p>It was in evidence that defendant appended his name for two shares, to a paper of the following tenor: —</p> <p>“ The subscribers hereby agree to take and fill the number of shares in the stock of'the York and Cumberland Railroad Company, set against their names respectively, on the terms and conditions following, viz : —</p> <p>“ 1st. The advance payment on each share shall be one dollar.</p> <p>“ 2d. The shares shall not be assessed more than five dollars each, payable at one time, nor to a greater amount in all, than fifty dollars, including the advance of one dollar.</p> <p>“ 3d. Whenever the whole amount of fifty dollars shall be assessed, and the road put in operation for the whole or any part of its distance, the holder of stock upon which the assessments shall have been paid in full, shall receive interest at the rate of six per cent, on the sums paid on his or her share or shares, computed from the days of payment up to the time the last assessment shall become due and payable! If any stockholder shall be delinquent, after said time, interest shall be charged on his assessment from said time till payment.</p> <p>4th. “ Whenever the directors shall call for any assessment; every stockholder shall be at liberty to pay such sum over and above the. amount actually assessed, as he or she may see fit to pay, not exceeding fifty dollars on each sharej and interest shall be allowed and paid thereon, as provided in the third regulation.</p> <p>“ 5th. If the whole number of shares subscribed for, shall exceed eight thousand, such excess shall be disposed of by reducing pro rata the subscriptions which are over twenty-five shares, without making fractions in the apportionment of the excess.”</p> <p>By the stockholders’ record of July 20, 1848, it appeared that the corporation accepted of an additional Act to establish the company, excepting the second section thereof. At that meeting a code of by-laws was accepted, the thirteenth of which was as follows: —</p> <p>“The president and directors may, from time to time make such equal assessments on all the shares in said corporation, as they may deem expedient and necessary for the purposes of the company; and may direct the same to be paid to the treasurer, at such time and place as they shall deem proper, governing themselves as to the amount of assessments, the allowance of interest, and in all other respects, by the terms, conditions and regulations prescribed by the persons having charge of the original subscription books for stock, before the opening of said books; and the treasurer shall give notice of the amount per share of every such assessment, and of the time and place, when and where the same will be due and payable, by advertisements, to be printed in one or more newspapers to be printed in Portland and Saco, at least thirty days before the day fixed for payment thereof. And if any stockholder shall neglect or refuse to pay any assessment or assessments on his share or shares in said company, for the space of thirty days after the first publication of such notice, the directors may order the treasurer, after giving notice, (as hereinafter provided,) of the sale, to sell any or all such shares, by public auction, to be held in said Portland, to the highest bidder; and the same shall accordingly be transferred by the treasurer to the purchaser; who shall be entitled to receive a certificate thereof. And notice of every such sale shall bo given by the treasurer, in one or more newspapers, printed in Portland, at least thirty days before the day of such sale, designating the time and place thereof, and the shares to be sold.”</p> <p>The officers of the company produced their books, by which it appeared that several assessments upon the shares had been made in accordance with the regulations thereof. Pour of these assessments had been paid by defendant on the two shares by him subscribed for.</p> <p>The balance of the assessments, to fifteen in the whole, the defendant had not paid. These assessments were duly advertised, and amounted in all to fifty dollars per share, the par value thereof.</p> <p>By the directors’ records of Sept. 13, 1853, the following vote was passed, and the defendant’s name attached with his residence and his number of shares : —</p> <p>“Voted, That whereas the persons named in the following list, holding the number of shares set against their names respectively, have neglected or refused to pay the assessments due thereon, the treasurer is hereby ordered, authorized and directed to sell all such shares at auction, to the highest bidder, at the office of Vm. D. Little, in the city of Portland, on Saturday the 22d day of October, A. D., 1853, at 10 o’clock, A. M., for the non-payment of the assessments due thereon.”</p> <p>The treasurer advertised, according to the by-laws, on Sept. 23, 1853, the sale of the following shares of the capital stock of the railroad corporation, on Oct. 22, following, for-the payment of assessments due thereon, and the interest and cost of sale, which stood on the books of the company in the names of the following persons (giving the defendant’s name, residence and number of shares, with other delinquents. )</p> <p>At the time appointed, these shares, with others, were sold at public auction for §12 per share, and certificates given to the purchaser.</p> <p>No shares were numbered as belonging to defendant, and none were so done until fully paid for.</p> <p>Toppan Robie was called as a witness, who was a stockholder, and was admitted against the objections of defendant. Ho testified to certain official acts he did as treasurer of the company. He prepared the assessment book; the first payment of one dollar per share, voted by directors, was called by him the first assessment, although it was intended the advance payment named in the subscription. He gave due notice of the assessments according to the by-laws.</p> <p>Upon the evidence, if the plaintiffs were entitled in law to recover, a default to be entered; otherwise, the plaintiffs to become nonsuit.</p> <p>I. The defendant, by his subscription and by his subsequent admissions thereof, by payments in pursuance of it, and other participation in the business of the 'company, became liable as a “ subscriber” to pay the plaintiffs, as alleged in the writ, fifty dollars per share upon the shares he subscribed for; and having neglected to do so, to pay to them the balance due on said shares after their sale by the plaintiffs, on account of said neglect, with costs of sale and interest, according to the law established and stated,—</p> <p>1. As to the meaning of the words “take and fill,” in his subscription, in the case of Bangor Bridge Co. v. McMahon, 10 Maine, 478.</p> <p>2. As to the validity of the contract between him and the plaintiffs, in the cases of Kennebec Portland R. R. Co. v. Jarvis, 34 Maine, 360; same v. Palmer, 34 Maine, 366.</p> <p>3. As to his admissions in recognition of the contract, in Greenl. on Ev., vol. 2, § 444; South Meadow Dam Co. v. Gray, 30 Maine, 547.</p> <p>4. As to his said liability as such subscriber, in c. 369, § 5, of Special Laws of Maine, of the year 1846, being the Act of incorporation of said Company, approved July 30, 1846; and case of Lexington Sf W. Cambridge R. R. Co. v. Chandler, 13 Met. 314.</p> <p>II. The witnesses wore -competent. Greenl. on Ev., vol. 1, § § 411,416 ; Wig gin v. Lowell, 8 Met. 301; Angel & Amos on Cor., § § 653, 655, 656.</p>

1854, May 22, To 136,201 feet re-sawed Southern pine lumber, at $40, per M., (for-new ship) . $5448,04 Survey at ,25 34,05 Interest to Sept. 6, 1854, 95,91 $5518,06 The writ was dated Sept. 9, 1854. The plaintiffs filed a remittitur of $43,00.

<p>Bill in Equity, for the specific performance of a contract.</p> <p>The bill set forth the following contract, signed by Noble, one of the defendants.—</p> <p>“Boston, May 20, 1851.</p> <p>“ Upon the following conditions, I will sell Mr. Robert Hull, of Portland, by deed of quitclaim, all my right, title and interest in and to the following lots of land, as laid down on the plan of. land or lots in Portland, west of Brackett’s estate, recorded Cumberland Registry, Eeb. 18, 1836, in the Plan Book No. 1, No. 10, in said book. The lots numbered on said plan 7, 8, 9, 10, 11, 12, 25, 26, 27, 28, 29, 30, also the lot 60 feet by 286, or thereabouts, being on Yaughan and X St. The same I purchased of Pain’s estate, and two undivided thirds of the lots of land mai’ked 35 and 37, being about 86 feet each by 200 feet, also two undivided third parts of four lots, about 20 feet, more or less, by 100, being southerly of, and adjoining lots Nos. 9, 10, 27, and 28, and lot No. 67, adjoining T. and W. streets 60 by 100 feet, his paying me for said land two thousand dollars, five hundred dollars in nine months, with interest from this date, and the taxes on said laud within the ninety days, and pay the taxes yearly, hereafter, and the balance, being fifteen hundred dollars, in three years with interest, payable annually, to be secured by notes and mortgage of the premises. Now if the five hundred and interest is paid me on the 20th day of Eeb., A. D. 1852, and he gives me the notes secured by a mortgage for $1500, payable in three years with interest, payable yearly, as the same fall due on or before said day; and if the said Hull shall well and truly perform, on his part, this agreement, and make the payments therein stipulated, to be made at the time and in the manner stated, I will give him the deed of quitclaim, as above provided for. Now upon the failure of said Hull to perform any part of the above agreement, or make the payments as provided for, then this obligation shall be void, and of no effect as against said Noble.”</p> <p>It was also alleged that the above agreement was signed by the orator, and remained in the keeping and possession of Noble, the orator having no copy of the same. But on tlie same clay, Noble delivered, to Mm a writing, signed by himself, running thus : —</p> <p>“ If Robert Hull pays me forty-three dollars and thirty-three cents, with interest, within thirty days from this date, I will give Mm a duplicate bond of sundry lots of land, signed by him and me, this day.”</p> <p>The bill further alleges, that on June 14, 1851, the orator paid, at the counting room of Noble, to one Hall, his partner or clerk, the sum of $43,50, Noble being then absent from Boston, who gave a receipt therefor in his name, and which afterwards was paid by him to said Noble; and then and there demanded the duplicate bond or agreement referred to in this last agreement, but could not obtain the same; and that he frequently applied for it afterwards and stated his willingness and readiness to fulfill the same on Ms part, but said Noble neglected and refused to deliver it, and after the expiration of nine months from the date of said instrument, the said Noble claimed and pretended that this complainant had lost all rights under the same, because he had not made the first payment according to the terms of said agreement, although he was ready so to do, and was prevented solely by the acts of said Noble in wrongfully withholding it; and that it was not until June 30, 1852, that he was enabled to see or read said instrument, or to become acquainted with the terms or dates of the payments provided for therein, at which time he called on said Noble and informed him he was ready to fulfill said agreement, and pay all that was required by the terms thereof, but said Noble refused to receive any payment, and insisted the same was cancelled and of no effect, and that this orator had no rights under the same; but the said Noble then, for the first time, offered him a copy of said agreement, which he called a duplicate, which he refused to accept, because said Noble declared the same was void, fearing that it might be construed into an admission that the statements made by said Noble were true.</p> <p>It was further alleged, that after consulting counsel, the plaintiff, concluded to receive said paper, but could not find Noble, and then requested his counsel to apply to the counsel of Noble for it, and that they obtained it on July 24, 1852. That on July 30, of that year, he tendered to the counsel of said Noble $500, with, the interest thereon, together with his note for $1500, with a mortgage on the land described in said agreement to secure its payment, and requested the counsel to notify said Noble. That on Aug. 2, of that year, he dispatched a person with the money, note and mortgage to Boston to make the tender to said Noble in person, but he was absent at Philadelphia, and was unable to make the tender. That on Sept. 10, 1852, thinking Noble would be at home, he sent again, but was unable to find him, and then such tender was made at his counting room.</p> <p>The bill also set forth that plaintiff, at divers times, on account of said land, had paid said Noble-large sums of money, and the taxes assessed on the same for many years past, and expended large sums in fencing and improving the same. •</p> <p>The bill also alleged, that said Noble, not regarding his said agreements, has refused, though thereto requested, and still refuses to convey said premises according to the terms of said agreement, but confederating with John B. Brown, the other defendant, has conveyed, or agreed to convey to said Brown, or entered into some written agreement with said Brown respecting the same, of the precise nature of which this complainant is not advised, and that when he entered into said agreement, or took the conveyance from said Noble, was well aware of the rights of plaintiff in the premises, and well knew he was in the open and peaceable possession'of the same, that said Brown claims the occupation and possession of said premises, and some title thereto, of the precise nature of which the complainant is not advised.</p> <p>The bill prayed for relief, for full answers under oath, and for a conveyance, &c.</p> <p>The defendant Brown, in his answer stated, that long before the making of this bill, he bargained with Noble for certain lots of land in Portland, among which were lots numbered 7, 8, 9, 10, 11, 12, 25, 26, 27, 28, 29 and 30, mentioned in the bill, and in pursuance of said agreement, on April 30, 1852, Noble conveyed the same to him, and he entered upon and took possession thereof under his deed, which he made a part of his answer. He also denied any combination or confederacy with said Noble to deprive plaintiff of the benefit of his agreement, but was informed by said Noble, and he verily believed that the plaintiff had not any right to said lots or any interest in them. That although Noble did offer to show him certain old agreements and correspondence between Noble and plaintiff, he did not read the same, being told they were of no value or consequence; that he knew nothing of his own knowledge about any of the doings and negotiations in regard to said lots, between said Hull and Noble, nor believed the allegations in the bill to be true.</p> <p>In the deed annexed to his answer, the consideration was inserted as $12000, but it was merely a quitclaim, without any covenant against persons claiming under the grantor.</p> <p>Noble, in his answer, alleged that the land described was formerly owned by himself and two other persons, which in 1835, they sold to plaintiff at auction, on which the first payment was made, and he mortgaged the same to the grantor to secure the purchase money. This mortgage was foreclosed, and the estate forfeited. He purchased out his partners, and that all the money paid by plaintiff was paid prior to the foreclosure of that mortgage. That he then made a new contract with said Hull on June 10, 1849, which he failed to fulfill, and applied to respondent for an extension of it. And this respondent, although he believed the complainant would still be unable to make the stipulated payments, yielded to his urgent request, and made the agreement described in the bill, at the same time stating to him, that unless he punctually complied with the terms, he should have no further accommodation. To this agreement was annexed the following, signed by plaintiff:—</p> <p>“ Eor a valuable consideration, I hereby agree to purchase the premises as within described, and make the payments as herein provided for, and give the notes and mortgage, and perform all the obligations as set forth in the paper signed by Joseph Noble above for me to perform.”</p> <p>He admitted the payment of $48,33, and averred his readit ness and willingness to make and deliver a duplicate of said agreement, whenever said complainant should call upon him for the same at Boston, his place of residence and business, and where the original agreement was made, or should send for the same. And he denied, that plaintiff frequently, within nine months from May 20, 1851, at any place, applied to him in any way for a duplicate, or stated his readiness and willingness to perform his part thereof, or that he ever refused to make and deliver the same.</p> <p>That he did not see or hear from plaintiff within nine months from May 20, 1851, except once, when about Nov. 1, 1851, he accidentally met him in Portland, and plaintiff asked him if he had the bond with him, when he made answer, that he had not, but that it was ready for him in Boston. That plaintiff did not then state his readiness to perform his' part of the agreement, but on the contrary, always declared his inability, and at no time did he make any inquiry as to its terms, or at any time within the nine months aforesaid, pretend that he did not know the terms thereof.</p> <p>The defendant Noble, further averred, that in June, 1852, at Portland, the plaintiff stated to him, that he had not been able before and could not then raise the amount required to make the cash payment named in said agreement; and then offered to pay $300, if he would wait eight months for the balance, which he refused, as he had before that sold and conveyed said lands to J. B. Brown. Whereupon the complainant, after said refusal of this defendant, for the first time, said he was ready to perform the conditions and stipuIations of said agreements, but made no tender of money, notes or mortgage, but afterwards, during tbe same interview, stated his inability, and requested an extension, which was refused.</p> <p>The tenders mentioned in the bill were admitted for any thing known to the contrary. lie also denied that any thing had been paid for said land under the last agreement or any prior agreement subsequent to the mortgage of 1835. That under the agreements and deed aforesaid, and notwithstanding plaintiff’s repeated failures to comply with their terms, he had been permitted to occupy the premises and receive the rents and profits thereof, from the date of his .deed, in 1835, to the time of said conveyance to Brown, without any account. And that after the time for making the payment and performing the other conditions of the agreement of May 20, 1851, by the complainant, had expired, and the complainant had wholly failed to comply with the same, this defendant, desirous of disposing of his land, received proposals from Brown, and conveyed to him these premises with sundry other lots. That he stated to Brown he had been advised by counsel, and verily believed that complainant had no interest in said lands, and no claim for a deed, &o.</p> <p>The complainant introduced depositions tending to show that, in October or November, 1851, he demanded the duplicate bond of Noble, and offered to pay any thing due; and that about the first of October, of the same year, Noble was called upon, by one Furlong, to see if he would sell a couple of those lots, and that he said he could not, they were plaintiff’s, if he paid the balance, but if he did not pay it, the land would belong to him, and he had promised it to J. B. Brown, and he should sell it to Brown, if to any one, and had agreed if he held the land, to deed it to him.</p> <p>By the payment of $43,33 to defendant Noble, the plaintiff had a right to the possession of a duplicate bond, and it became an operative, executed and delivered instrument, in force against both parties, and he had a right to a conveyanee of the land upon the subsequent performance by him of the terms of the bond. This bond was, in Oct. or* Nov., following, demanded, and according to the evidence, refused. Noble was then in default, and so remained until his power of performance was divested by his own act.</p> <p>The complainant did not offer the payments at the exact time. He has a legal excuse, he did not knoV when the payment was to be made, and if he had known, he could withhold until defendant performed his duty.</p> <p>In Oct. 1851, Noble was conspiring with Brown to work a forfeiture. Hull owed nothing then, nor would he until the February following. After the time had expired, he received, by his agent, money towards these premises.</p> <p>Brown is chargeable with notice. He bargained in Nov., 1851, and was to have the property in case Hull did not pay. His deed is dated in the following April. It shows on its face that he knew Hull’s rights, and that Noble knew he had rights. No covenants of any kind, and still a consideration of $12,000. This was not recorded till June 22, of the year following, after this bill was commenced. The answers of Brown and Noble admit sufficient knowledge to charge Brown with notice. If he did not read the papers, he had notice enough to put him on inquiry.</p> <p>As to what amounts to notice, we cite Carr v. Hilton, 1 Curtis, 390, and to the effect of it. ' 2 Story’s Eq. § 784.</p> <p>Here the time of performance was not of the essence of the contract, and specific performance in such cases will be decreed. Jones v. Robbins, 29 Maine, 351. ■ If it was, then we show'the failure owing to the fault of the other party. Rogers v. Saunders, 16 Maine, 92. We might rely also upon a waiver of strict performance. ' Longworth v. Taylor, 14 Peters, 172; White & Tudor’s Leading Cases in Equity, vol. 2, part 2, pp. 26, 29, 30, 33 and 36,.</p> <p>Noble, contended that the agreement of May 20, 1851, was a conditional one, based upon conditions precedent, which were not complied with, or prevented by Noblo. .Plaintiff was notified that no extension would be given.</p> <p>That it was well settled that equity will not ordinarily relieve against the breach of a condition precedent.</p> <p>That the agreement and the memorandum for a copy, were entirely independent matters, the neglect to furnish the duplicate was no excuse for non-compliance with the conditions; that it was not even alleged that plaintiff did not know the terms of the agreement.</p> <p>That in the interview, in Nov. 1851, plaintiff admitted his inability, and did not pretend ignorance of the terms, and so also in June, 1852, when he offered §800, and wished an extension for the balance, which was refused; at the same time after this, admitted his inability; but this was the interview, when, according to a witness, plaintiff said he was ready to perform.</p> <p>That under this agreement, not a cent had been paid towards the land; the sums paid, wore merely for rent.</p> <p>That plaintiff had never performed the stipulation as to faxes, and never offered to do so; and that the answer is to be taken as true, no attempt being made to disprove it.</p>

On Exceptions from Nisi Priiis, Howard, J. presiding. Assumpsit, on a policy of insurance on five sixteenths of the bark St. Lawrence, dated Eeb. 7, 1853, for one year. The general issue was pleaded and joined.

On Facts Agreed. Replevin, for fifteen barrels and three kegs of spirituous liquors. ■ • On June 13, 1853, the defendant, as a constable of Portland, seized the liquors described in the writ, under a warrant issued in conformity to c. 48, of the Acts of 1853, and made due return of his warrant, having conveyed the liquors to a proper place of security for final action.

On Report from Nisi Prius, Howard, J., presiding. Assumpsit, on a note payable to Luke Buzzell or order, and by him indorsed. The defence relied upon was usury. John Buzzell, one of defendants, was called, and testified that the note was wholly usurious. To rebut this, plaintiff tendered his own oath, and testified that he was not present at the time of the transaction, nor when the note was given.

<p>The plaintiff being indebted to defendant, in Sept. 1834, sent him the money by mail, which he alleged he never received, and the plaintiff afterwards paid him the debt. Subsequently the plaintiff was satisfied that the money sent by mail was received by the defendant, and. commenced his suit to recover it. The defendant offered to prove that, in 1836, there were found in the house where the mail carrier of the supposed lost letter lived in 1834, a number of letters, secreted in the wall and under the floors of the house, broken open, bearing date in 1834, post marked at other places than where found, and directed to persons in another town: —</p> <p>Held, that this evidence or any declarations by such mail carrier, unaccompanied by any acts, was inadmissible.</p> <p>In such suit, the entries in the books of a bank, made by a cashier, deceased, in the ordinary course of his business, tending to prove any fact material to the issue, are proper evidence; but where such books are rejected by the presiding Judge, the objecting party must bring the rejected documentary evidence before the Court, that by inspection or some other way, the fact of its admissibility may be determined; otherwise, the presumption is, that they were rightfully excluded.</p> <p>As proof of the bankruptcy of plaintiff, were offered copies of all the papers made by the applicant to the District Court of Massachusetts, the orders and decrees of the Court, appointment, bond and account of the assignee, and the marshal’s certificate, tacked together by a ribbon, to which was prefixed the certificate of the clerk of that District Court, that it contained the copies of the whole record in that case, with the seal of the Court affixed, but on several of the papers thus tacked together, was also his certificate that they were true copies : It was held, that the document thus offered, was not duly authenticated as a oopy of a record, and was rightfully rejected.</p> <p>Quere, whether, under the plea of the general issue only, the bankruptcy of a plaintiff may be given in evidence.</p>

On Report from Nisi Prius, Rice, J., presiding. Writ oe Entry. Nul disseizin was pleaded. The demandant claimed the premises in fee, and to support her title, introduced a mortgage deed of the premises from Ebenezer H. Ayer to Mark Hill, dated March 24, 1844, with the note mentioned in the condition, also a published notice of the foreclosure of the same by said Hill.

On Report from Nisi Prius, Appleton, J., presiding. Trespass. The defendant, as collector of taxes of the town of Oxford, took a pair of steers, the property of plaintiff, ■wherewith to satisfy a tax against him. The defendant introduced a portion of the records of the town, a copy of the tax bills, warrant, and his doings thereon. The plaintiff also introduced other records of the town.

On Report from Nisi Prius, Rice, J., presiding. Wkit of Entry. The defendants pleaded the general issue, and Enoch Dill and his wife, two of them, by their brief statement, claimed a life • estate in the demanded premises; Mercy Dill, the other defendant, claimed title to a portion by force of a levy, and to the residue as tenant under the other defendants, and if the levy failed, a tenancy in the whole under Enoch and his wife.

<p>On Report from Nisi Prius, Shepley, O. J. presiding. Writ op Entry, to recover possession of lots numbered 3 and 4, in the first range, according to the new survey, in the town of Oxford.</p> <p>The tenant pleaded the general issue, and filed a brief statement of title in himself and in the heirs of Jacob Dwinal.</p> <p>The demandant, through Jairus S. Keith, claimed title from the administrator of Samuel Brown, deceased.</p> <p>And the question was, whether Brown, at the time of his death, was seized of the premises.</p> <p>The following diagram, in connection with the evidence, will show more distinctly the nature of plaintiff’s claims: —</p> <p> </p> <p>The above sketch or plan was used at the trial, certified by David Noyes, on Dec. 1, 1854, as “the plan of the above lots in the first and second range of lots in the third division of lots in Hebron, a part of which is now Oxford, and is a true copy this day taken from the old original plan, now in possession of William C. Whitney.”</p> <p>“N. B. Lots No. 5, in the first and second ranges, are northwest of the Samuel Brown farm, and were once owned by Jacob B. Brown.”</p> <p>In the demandant’s deed of quitclaim, from Jairus S. Keith, of Dec. 1, 1851, was this description: —</p> <p>“ One parcel of land situated in said town, called and known as lot numbered four, in the first range of lots in said town, and also another parcel lying aside the first described parcel, called and known as lot numbered three, in said first range, and those two parcels of land, being two jib lots, lying between lots numbered three and four, in the second range, and the pigeon hill lots in said town; for further reference they may be found described on the new survey and plan of Alexander Greenwood, as above set forth.”</p> <p>The deed from the administrator of Samuel Brown, to said Keith, contained the same description.</p> <p>William O. Whitney testified, that Alexander Greenwood was directed to have the lands surveyed, and that his was called the new survey, and that a plan introduced of the premises, bearing his signature, was genuine.</p> <p>Samuel Brown had a warrantee deed of lot No. 3, in 2d range, according to the new survey, in 1825, and a bond of No. 4, in 1826. There was evidence tending to show that he lived on these lots 25 or 30 years; that he would not take a deed of lot No. 4, as the bond did not embrace all the land he bargained for, and that he called a part of his land the back lot, which included all from Pigeon hill lots to Hogan pond, and that he bargained for the lot. His house was on the eastern side of the range line, marked on the diagram, and he occupied and improved them as his homestead; and there was no evidence of any line, or the range line, in fact.</p> <p>On Jan. 22, 1838, Samuel Brown conveyed, by deed of warranty, to Leonard, John and Cyrus Brown, as follows:</p> <p>“ Two lots of land, situated in said Oxford, being lots numbered 3 and 4, in the second range, according to the new survey of lots in said town of Oxford,” one-half to Leonard, and a quarter to each of the remaining grantees.</p> <p>He also, on July 11, following, executed another warrantee deed to the same Leonard Brown, of “ one undivided half of lots No. 3 and 4, in the second range, in said town of Oxford, according to the new survey, being the farm now occupied by said Samuel Brown, in Oxford.”</p> <p>The title acquired by Leonard, John and Cyrus, by these conveyances, was held by the tenant and others in common, with whom the demandant had no connection.</p> <p>Upon so much of the testimony as was admissible, the Court were authorized to draw inferences as a jury might, and enter judgment by nonsuit or default.</p> <p>in the opening argument, maintained, that the title of Samuel Brown was by possession or disseizin. How that was obtained, he cited Little v. Lib-bey, 2 Maine, 247. That when a grant of land is made with reference to a plan actually made at the time, if it can be ascertained, it is to govern, according to Heaton al. v. Hodges, 14 Maine, 66.</p> <p>He also argued, that definite boundaries will limit the generality of a term previously used, as “my homestead farm, being lot Xo. 13, in range 4,” was construed to convey only the lot, although the grantor occupied land adjoining the lot. Allen v. Allen, 14 Maine, 387; Allen v. Littlefield, 7 Maine, 220; Thorndike v. Richards, 13 Maine, 430; Lyman v. Clark, 9 Maine, 238; Child v. Hickett, 4 Maine, 471.</p> <p>By the principle in Allen v. Allen, the tenant is limited to lots 3 and 4, in the 2d range. The definite boundaries limit. No mention is made in the deeds of lots 3 and 4, in the first range, by Samuel or any of his grantees.</p> <p>He also maintained, that according to the evidence Samuel Brown always kept up a distinction in the ranges, and that of these jib lots he kept and maintained a quiet and peaceable possession of them until his death, and that no claim was ever made to those numbers in range one until after Samuel’s death.</p> <p>To enable the administrator to convey, Brown must have died seized in fee simple or in fee tail, general or special, of the premises, or he must have fraudulently conveyed them or been colorably disseized with intent to defraud his creditors, R. S., c. 112, § 31, otherwise nothing pa'ssed by the administrator’s deed.</p> <p>He also argued, from the evidence reported, that Samuel Brown held his homestead, not by disseizin., but, so much of it as was not embraced in the deed to him, by contract with the owner and in subordination to such title. That if the jib lots, so called, were not in reality a part of lots No. 3 and 4, 2d range, then his occupation' would not constitute a disseizin, and would not give any title to the jib lots to said Samuel Brown, but the same would remain, notwithstanding his occupation, in the original owners, and they might lawfully convey it as they have undertaken to do. Brown v. Gay, 3 G-reenl. 126; Lincoln v. Edgecomb, 31 Maine, 345. And that at no time did Samuel Brown have any legal title to the premises demanded either by deed or disseizin. But again, if he had any title whatever to those jib lots, so called, he parted with it before his death. The lots 3 and 4 were claimed to extend to Pigeon hill, and by new survey did reach that line.</p> <p>The deeds he' gave are not objected to as being in fraud of Samuel’s creditors. According to the case of Abbott v. Pike, 33 Maine, 204, the word farm being more certain than the No., controls the description, and thus passes his title to his farm.</p> <p>The objection made, that the tenant does not own the whole but only a fourth part, if any, is of no avail, if it appears that the demandant has no right there. It is upon the strength of his own title he must prevail, if at all.</p> <p>The title to lots No. 3 and 4, in the 2d range, is not in issue. The testimony in the case shows, that Samuel Brown acquired title to jib lots 3 and 4, in the first range, by disseizin, as maintained by my associate in the opening argument. This position is controverted, but neither the testimony nor the arguments used in defence are successful.</p> <p>The case of Dwinal v. Holmes settles nothing in relation to No. 4, in the 1st range, and the whole argument of the Court, when applied to the last mentioned lot, entirely fails. The counsel for tenant labors to prove, from the declarations of Samuel Brown, that he held in subordination to the title of the Cragie heirs, but I contend, that all declarations of Brown which tend to contradict any sealed written instrument are legally inadmissible. The contract only related to that in the 2d range, and is the only evidence as to what the parties agreed to.</p> <p>Again, random declarations carelessly made and imperfectly remembered, should always be received with great caution, especially when they contradict written contracts, and the deliberate acts of the parties making them.</p> <p>There is no evidence in the case tending to show, that 4 in the 1st range was intended to be included in the bond. The counsel on the other side carefully avoids any allusion to the acts of Brown to show what he understood' about it. What were his acts ?</p> <p>He went into possession of lot No. 4, first range, in 1811 or 12; that subsequently one or two other persons were there exercising acts of ownership, and in 1815 Samuel Brown purchased of Isaac Estes his betterments. This was ten years before the trade with the Cragie heirs for lot No. 4, 2d range. He also agreed to sell a part of lot No. 4, 1st range, in 1815 or 16, and the person with whom the contract was made went into possession of the same and remained two years.</p> <p>Here was adverse possession, ten years before the trade for No. 4, in the second range. Douglass sold back to Brown, and he continued in possession thereof. These acts show no subordination to the Cragie heirs.</p> <p>When Brown took the bond, he did nothing to recognize any right of the Cragie heirs to No. 4, in the first range. This bond was made of No. 4, in the second range, when it was perfectly well known that there was, by the survey,, the same number of the first range, which fact shows that they only,claimed title in range 2.</p> <p>As to the other jib lot, the testimony shows that Samuel went into possession of it as far back as 1804, and built a house upon it, and the deed from Whitney to Brown, of 3, in second range, is dated in 1825. And the fact that he cut timber on this lot after the conveyance to his sons, of lot 3, in 2d range, shows that he never understood that it belonged to that lot.</p> <p>These acts were notice of an adverse claim. Alden v. Gilmore, 13 Maine, 118; Poignard v. Smith, 6 Pick. 112; School District No. 4, in Winthrop, v. Benson, 31 Maine, 381.,</p> <p>All the acts of Brown show his possession in the premises to have been adverse, as well as open, notorious and exclusive.</p> <p>Having established, as I trust, the title of Samuel Brown, to jib lots 3 and 4, in the first range, did he die seized of them? Does the tenant show any title to the premises? If any, it is by the deed of Samuel Brown to Leonard, John and Cyrus, of Jan. 22, 1838. This deed cony eyed nothing but 3 and 4, in second range.</p> <p>The deed of Samuel Brown to Leonard, of one-half of 3 and 4,. was dated July 11, 1838.</p> <p>It is a matter of no sort of consequence, so far as this case is concerned, whether the old gentleman, in this last deed, conveyed one lot or two, as the tenant does not pretend to claim any thing under it.</p> <p>In Abbott v. Pike, 33 Maine, 204, the deed described the land as being “lot No. 3, the same farm that Peter Wyman now lives on.” The question was not, whether lot 3 extended over the whole farm; it is not at all analagons to the case. The facts found, the “ farm to be on lot one, instead of three. The question was, whether the word “ farm,” as occupied by a certain person, was a more certain description than the number of a lot upon which said person never lived. This case does not, in any particular, overrule the case of Allen v. Allen, 14 Maine, 381; and the Court will so find by examining the two cases.</p> <p>The plan put into the case as the new survey, as sworn to by Whitney, shows that 3 and 4 in the 2d range, did not extend to the Pigeon hill lots. This I put in against the bare assertion of Bro. May to the contrary, unsustained by a single particle of proof.</p> <p>The case, as drawn up by the Chief Justice, finds no deed put in from John Brown to David Dunn, and yet one has been smuggled in by the tenant. This not having been put into the case, will not be considered by the Court.</p> <p>This puts an end to the title of the tenant, as claiming any thing under Samuel Brown.</p> <p>But supposing this deed was in the case, it does not help the matter any for the tenant, for the copy smuggled in, conveys only “ J of 3 and 4 in the second range, and the same conveyed by Samuel Brown, Jan. 22, 1838.”</p> <p>Then the deed from Dunn to tenant describes the land of lots 3 and 4, being the same conveyed by the said Samuel Brown in Jan., 1838, and by him, since that time, conveyed to me.”</p> <p>If the tenant has any title under Samuel Brown, it is clearly to only ¿ of 3 and 4, in the second range. To contend for any thing more, is to argue against the express words in the deed making the grant.</p> <p>There is no evidence, that the heirs of Cragie ever had any title to the demanded premises.</p> <p>If the tenant has title to any part of the Samuel Brown farm, it is only to ¿ of lots 3 and 4 in the 2d range. These the plaintiff does not claim. The demandant having shown, as we think, the title in the premises in Samuel Brown at the time of his decease, is entitled to judgment.</p>

On Report from Nisi Prius, Appleton, J., presiding. Trespass quare clausum. This action, commenced on July 25, 1853, is against two of the directors of the Penobscot & Kennebec Railroad Company, and the two contractors for building their road. The defendants pleaded the general issue, and, by way of brief statement, justified their acts as servants of that corporation.

On Exceptions from Nisi Prius, Hathaway, J., presiding. Indictment against the defendant in this form: — The jurors, for the state aforesaid, upon their oath present, that William L. Stevens, of Bangor, in the county of Penobscot, laborer, on the first day of September, in the year of our Lord one thousand eight hundred and fifty-two, and on divers other days and times between that day and the day of the taking of this inquisition, at Bangor, aforesaid, did keep and…

On Facts Agreed. Trover, to recover the value of a stock of goods. The plaintiffs’ title was derived by a mortgage from one Harford Knowles, of Nov. 3,1853, in these words: — “All and singular, the drugs, medicines, goods, wares, merchandize, perfumery, fixtures and apparatus in store No. 22, west market place, in said Bangor, and in the cellar under said store, being the store and cellar now occupied by me,” &c. This mortgage was recorded on Nov. 5, of the same year.

Petition for Partition, for the interest of petitioner in the Webster farm, (so called,) in Orono. The facts in the case were agreed to, and are stated in the opinion of the Court.

On Report from Nisi Prius, Hathaway, J., presiding. Writ op Entry, to recover possession of a parcel of ■land in Corinna. The general issue was pleaded. The demandant introduced a quitclaim of the premises, from one Sumner J. Pratt to John tlnderwood, dated March 10, 1851, and recorded on the 18th of the same month, in which the consideration was $500,00.

On Exceptions from Nisi Prius, Hathaway, J., presiding, and on motion for a new trial. Trover, for a lot of goods. The defendant Crowley had mortgaged his goods to secure a debt due to plaintiff, and after such mortgage the plaintiff furnished such goods as he wanted, on consignment, until the stock he had was mostly consigned. Both parties living in the same town, payments for the goods were made twice a week.

On Report from Nisi Prius, Appleton, J., presiding. Replevin, for sundry goods. The defendant pleaded the general issue, with a brief statement that the goods were not the property of plaintiffs, but of one Caleb Wentworth, being attached by defendant on the several writs specified, against him.

<p>Matters in defence, arising after the commencement of the suit, and before issue joined, cannot be pleaded in bar generally, but may be as to the further maintenance of the suit.</p> <p>And where such a plea sets forth a conveyance by demandant of the premises, by a deed duly executed, acknowledged and recorded, it wül be sufficient though it omits to allege that the deed was delivered.</p> <p>Objection to the time oí filing a plea puis darrein continuance, cannot be made upon demurrer, but through a motion to set aside the plea.</p> <p>If the demandant in a real action, after the commencement of his suit, conveys, by deed, to a third person, the premises demanded, the tenant may successfully interpose a plea in bar to the further maintenance of his suit.</p>

<p>On Report from Nisi Prius, Rice, J., presiding.</p> <p>Assumpsit. The defendant was defaulted.</p> <p>The question was as to the liability of the trustees, a Mutual Fire Insurance Company. On March 12, 1850, they issued a policy to the plaintiff upon his dwellinghouse and barn, in accordance with his application wherein he represented himself as the owner. This policy, with the consent of the company, he transferred to the defendant. In March, 1850, the house was burned.</p> <p>By § 6, of the charter of the company, it was provided that they should have a lien against the assured on all buildings insured by them, during the continuance of the policy, to the amount of the deposit note, and no more.</p> <p>By art. 4, of their by-laws, it was required that every applicant for insurance shall, by himself or his agent, make out and subscribe, according to the forms prescribed by the directors, a written description of the buildings to be insured, with every circumstance material to the risk, and of the land to be included in the lien.</p> <p>The premium note in this case was $6,00.</p> <p>After the evidence was out, it was agreed to submit the cause to the decision pff,the full Court. The evidence of title, on which the case turned, is stated in the opinion. The tax,under which was made a claim of title, was assessed in 1841.</p>

<p>On Facts Agreed.</p> <p>Writ of Entrt.</p> <p>One Lucius Doolittle having recovered a judgment against the demandant, on Dec. 24,1852, levied the same on the premises, and seizin and possession were delivered to his attorney.</p> <p>On March 9,1853, the tenant having recovered a judgment against said Doolittle, levied the same on the premises as his property, and seizin and possession were then delivered to his attorney.</p> <p>Both of the levies were duly returned and recorded.</p> <p>On Oct. 17, 1853, Doolittle conveyed the same to one Drummond, who, on Sept. 1, 1854, conveyed the same to demandant.</p> <p>The premises were not redeemed from either levy.</p> <p>If the demandant, on these facts, is entitled to recover, a default to bo entered; otherwise, a nonsuit.</p>

<p>By § 2, c. 162, R. S., it is provided, that any person shall he punished who shall maliciously or wantonly, break down, injure, remove or destroy any dam, reservoir', canal, trench, or any of the appurtenances thereof.</p> <p>An indictment under this section, charging that the act was done maliciously and wantonly, is supported by proof that the act was done maliciously or wantonly, and describes hut one offence.</p>