Volume 41 — Maine Reports

Bill in Equity. The plaintiff was one of twelve persons who became parties to the following agreement:— “Brunswick, April 19, 1841. “ Eor the purpose of building a meeting-house to be occupied by the East Brunswick Baptist Church and Society, to be located where the old meeting-house now stands, we, the subscribers, agree and promise to pay the sum annexed to our individual names.

On Report from Nisi Prius, Goodenow, J., presiding. The petitioner, in this case, represented in Ms petition that at the January and March terms of the Supreme Judicial Court of Cumberland county, A. D. 1856, he was in attendance and performed sundry services as sheriff of said county; that Ms fees therefor were duly certified by the presiding judge; and that, having made demand upon the respondent, as treasurer of the county, for payment, he had refused to pay the same.

This was a bill in equity, filed at the April term of this Court, 1855, for Cumberland county. Service was completed in November following.

This was a bill in equity, in which the complainant alleged that a certain easement or right of way over flats to which he had right as an appurtenance to land owned by himself in common with others, situated near the head of Union wharf in Portland, had been obstructed, interfered with and interrupted by the respondents, (by constructing a wharf upon the premises over which the right of way exists,) and that they were preparing still further to interfere with, interrupt and…

Memorial by one of the Justices of this Court, who had been removed from office by the Governor, with the advice of the council, on the address of both branches of the Legislature, alleging that the proceedings by which he had been removed were null and void, and praying that notice might be ordered to be given him at what term of the Court his services would be required.

<p>The declarations of a party to the record, or of one identified in interest with him, are, as against such party, admissible in evidence.</p> <p>The law, in regard to this source of evidence, looks chiefly to the real parties in interest, and gives to their admissions the same weight as though they were parties to the record.</p> <p>In an action against one partner, the declarations of another partner are admissible.</p> <p>A nonsuit ought not to be ordered, though the presiding Judge may have drawn proper inferences from the testimony, and arrived at a correct result, if the facts were such as might justify a jury in coming to a different conclusion without danger of their verdict being set aside as against the weight of evidence.</p>

On Exceptions from Nisi Prius, Davis, J., presiding. Writ of Entry. The facts sufficiently appear in the opinion of the Court. 1. That it appeared by defendant’s evidence and other testimony in the case, that the mortgage had not been foreclosed. 2. That the plaintiff, although he received the consent of the mortgager to enter, yet never took actual, personal possession, -which being continued three years following, would operate to foreclose the mortgage.

On Report from Nisi Prius, Howard, J., presiding. Trespass quare clausum.

On Facts Agreed, from Nisi Prius, Dayis, J., presiding. This was an action of Trespass, brought by the plaintiffs, for taking and carrying away oats and wheat, the property of the plaintiffs, and alleged to be exempt from attachment and execution.. The writ is dated March 25,1854.

On Report from Nisi Prius, Davis, J., presiding. Assumpsit. The defendant was tenant under the plaintiff, paying rent quarterly on the first days of January, April, July and October. On the first day of July, 1853, the plaintiff presented a bill to the defendant for “ two month’s rent, and tax of store to June 1, 1853,” which was paid.

<p>The acceptance of a charter creating a company must be proved by the best evidence in the power of the party relying upon it. The looks of a corporation are the regular evidence of its doings.</p> <p>If its records cannot be produced, an acceptance of the charter may be proved by implication from the acts of the company.</p> <p>In an action to recover from an individual stockholder the amount of a creditor’s execution against the corporation, the organization and existence of the corporation, if denied, must be proved. The judgment obtained may not be conclusive evidence of those facts.</p>

On Demurrer. The defendant in this action having made a disclosure of his property and taken the poor debtor’s oath, the plaintiff, a creditor, commenced a special action on the case against him, under the provision of the Revised Statutes, c. 148, § 47. The declaration in the writ alleged, among other things, that the defendant had willfully made a false disclosure.

On Exceptions from Nisi Prius, Davis, J., presiding. This was an action of assumpsit. There was a general appearance for the defendant at the return term. At the next succeeding term, the defendant’s counsel moved to have the writ dismissed for want of a sufficient affidavit for arrest. The Court overruled the motion, tó which the defendant excepted.

On Facts Agreed. Trespass on the Case, for injury by the tenant to premises during tenancy. contended that, at common law, trespass on the case was the right form of action, and cited numerous and pertinent authorities to the point; but, if not at common law, the Eevised Statutes, c. 115, § 13, had fully authorized such form.

<p>A deposition taken out of the State, by a person lawfully empowered to take it may be admitted or rejected by the Court at its discretion, though it may not, in all respects, conform to the technical requirements of the statute.</p> <p>The extent of this discretion has never been defined; but the practice has been to admit such depositions when the presiding Judge is satisfied that there has been a substantial compliance with the statute.</p> <p>Such a deposition may be admitted or otherwise, at the discretion of the Court, though it does not appear by the caption, that the deponent was duly sworn before deposing.</p>

<p>Bill in Equity. The plaintiffs allege that the defendant bas, under pretence of authority under a certain deed of mortgage held by him, attempted to take possession of the railroad of the corporation, the plaintiffs’ personal property pertaining to the same, and all the corporate franchise, and that he now claims that he has possession, and has divested the corporation of its corporate powers, putting an end to its corporate existence, and that he has interfered with the management of the trains, and removed officers appointed by the directors; that he has advertised the railroad and all the other property, with certain exceptions, for sale at auction.</p> <p>A description of the mortgage deed, with other facts in the case, sufficient to make clear the points decided, are found in the opinion of the Court.</p> <p>The bill prays that the defendant may be enjoined from attempting to make any sale of the property mentioned in the mortgage, until his right to do so, and the extent of his rights are established by judgment of Court; that he be required to give sufficient security to apply any income of the road which may come to his possession to the payment of the bonds, and interest thereon, and to indemnify the corporation and the stockholders from any damage by his negligence, and the negligence of his servants, before he take or attempt to take any possession of the property of said corporation, and also to indemnify the corporation against the contract to carry the mail, and the payment of the first issue of bonds and coupons.</p> <p>The case was heard on demurrer to the bill.</p> <p>I. It appears by the bill, that defendant is a trustee for the bondholders, and that the bonds have been alienated by defendant, and separated from the mortgage. That in such a case, the mortgagee becomes trustee for the holders of the personal securities so sold and separated, is well settled. 2 Story’s Eq. 1016; Haines v. Wellington, 25 Maine, 458; Johnson v. Candage, 31 Maine, 30; Parsons v. Wells, 17 Mass. 425; Cram v. March, 4 Pick. 131; Smith v. Kelley, 27 Maine, 240.</p> <p>II. The case finds Myers in possession. The mortgagee in possession is trustee for the mortgager. 2 Story’s Eq. § § 1013, 1015, 1016.</p> <p>III. If the Court is satisfied that there is danger of a misapplication or waste of the trust property, it can intervene by the appointment of a receiver, or by requiring sufficient security for the protection of the trust funds. 2 Story’s Eq. § § 827, 828, 829, 831, 835, 845, 846, 847; R. S., c. 96, § 10 and 11.</p> <p>IV. The mortgagee is trustee for the bondholders primarily, and secondly of the corporation, who have an interest in various points of view. 4 Kent’s Com. 140; 2 Story’s Eq. § § 1024, 1025.</p> <p>V. The Court favors the right of redemption. 2 Story’s Eq. § 1019 ; 4 Kent’s Com. 252, 253; Seton v. Slade, 7 Ves. 273; Heldridge v. Gellespie, 2 Johns. 30; 2 Cow. 324, 331,</p> <p>The bill alleges, and it is admitted, that the president and directors had not authority to mortgage the property to secure the construction contract; that Myers has recovered judgment against the corporation for more than $170,000 for breach of construction contract; and that defendant threatens to sell the whole property, and apply the same to pay his own private debt. In such case, it is the duty of the corporation to interfere. Kingsley v. Ames, 2 Met. 30.</p> <p>VI. It is alleged and admitted, that the corporation is obliged to carry tbe U. S. mail, 'by contract and by law. See charter of the company, § 12. There is nothing binding on defendant to carry the mail, and the Court should not allow him to take possession of the road till assurance is given that the mail will be carried.</p> <p>YII. The injunction prayed for ought to be granted.</p> <p>1. The bill alleges, and the demurrer admits, that the construction contract of Aug. 5, 1850, as modified Eeb. 6, 1851, was not embraced in the mortgage. The clause, “and if said contract shall also be fully performed in all other respects, then this deed,” &c., it is alleged in the bill, and admitted by the demurrer, was inserted in the mortgage without authority.</p> <p>The clause referred to is inconsistent, also, with all the remainder of the deed, and should be rejected for repugnancy. See rules for construction of deeds, 1st to 8th, 1 Shep. Touch, pp. 86 to 88; Vose v. Handy, 2 Greenl. 332; Kelt v. Reynolds, 3 Greenl. 393; Wing v. Burgess, 11 Maine, 111.</p> <p>2. Myers had no authority to take possession under the actual conditions of the mortgage. There was no breach of those conditions. The bonds themselves were never presented for payment, and the certificates, called coupons, were not negotiable, were issued without consideration and without authority, and are not payable at all.</p> <p>It is alleged in the bill, that the railroad bed, &c., are real estate. The property in the mortgage is partly real and partly personal estate. The mortgage cannot be foreclosed in less than three years after breach, and the mortgagee has no power under the deed to sell.</p> <p>Most of the personal property was purchased after the mortgage, and has been mortgaged to other persons, who have taken possession. Of this there is no doubt, and the demurrer admits it. Jones v. Richardson, 10 Met. 481; Barnard v. Eaton, 2 Cush. 294; Codman v. Freeman, 3 Cush. 306.</p> <p>Every thing that springs out of the land in this case is real estate. R. S., c. 1, art. 10, § 3; R, S., c. 81, § § 2, 3, 6, 7; Charter of Y. & C. Railroad, § § 1, 2, 5, 15; Stat. 1845, c. 159, § 3; Ib. c. 165, § 1; R. S., c. 1, art. 10, § 3; 2 Kent’s Com. 275; Boston W. P. Co. v. Worcester Railroad Co., 23 Pick. 392, 393.</p> <p>3. It is alleged, and admitted by the demurrer, that the charter is inalienable without the consent of the State. Mr. Woodman cited and commented on the following statutes: —The charter, § § 1 to 19 ; R. S., c. 81, § § 1 to 21, 24; Stat. of 1842, c. 9, § § 1 to 6 ; Stat. of 1845, c. 165, § 3; Stat. of 1846, c. 197, § 4; Stat. of 1849, c. 145, § § 1, 2; Stat. of 1845, c. 171, § § 1, 2; Stat. of 1852, c. 220, § 1; lb. c. 247, § 1; Stat. of 1853, c. 44, § § 1 to 5; lb. c. 41, § § 1 to 4, 9, 10, 11, 18, 19, 20; Stat. 1854, c. 93, § § 1, 2; lb. c. 107, § 1; Stat. of 1855, c. 161, § § 1 to 7; R. S., c. 117, § § 20 to 23.</p> <p>YIII. The deed conveys no legal estate to any bondholder, and no more to Myers than to any other bondholder. It gives him a legal estate in trust for the bondholders. If one bondholder could sell, all could, and all could sell on the same day. •</p> <p>IX. The defendant having no right of entry, and no power to make the sale, the injunction ought to be made perpetual, to prevent litigation, to prevent waste, and ^contingently, to avoid an irreparable injury, and for various other causes. R. S., c. 96, § § 10, 11; 2 Story’s Eq. § § 901, 928, 905, 906, 907, 908, 977, 978, 1225, 1287, 826, 954, 914, and authorities there cited. Mr. Woodman examined these authorities, and enforced his views at length.</p> <p>I. The plaintiffs are estopped of all rights to the relief prayed for, by their deed of mortgage and trust to the defendant.</p> <p>II. The operation of the deed so made, vested the legal title of the property it describes solely in said Myers, subject only to two conditions of defeasance; but for the benefit of himself and <fhis assigns, who shall become the holders of the bonds and coupons.”</p> <p>III. The stipulations and covenants of the deed reserve specially “the possession and uses of said premises,” to the grantors, so long as payment shall be made of the bonds and coupons; but, upon failure thereof, for the term of sixty days, the holder of said bonds, or any one or more of them, is authorized to take possession, for the common benefit of the holders of all the bonds.</p> <p>Under this power, while it is competent for any unpaid bondholder to take possession, &e., the legal title, being in defendant, must proceed from him.</p> <p>The plaintiffs claim to enjoin the defendant in the execution of a trust he is now endeavoring to execute, for the benefit of himself and the bondholders.</p> <p>Equity will not interpose an injunction upon a mortgagee in possession, if he can swear that any thing is due to him upon the mortgage. Eden on Injunctions, 1st Am. Ed. p. 219; Quarrell v. Bickford, 13 Ves. 378; Cholmondely v. Clinton, 2 Jac. & Walk., 1 to 189; 2 Story’s Eq., § 1013, note 3; Parsons v. Welles & als., 17 Mass. 419.</p> <p>IV. It is denied, that defendant has any rights as mortgagee, except in his fiduciary capacity.</p> <p>Our answer is, that the deed to defendant is conditional, (1) to pay bondholders, and (2) to perform the contract “ in all other respects.”</p> <p>As to the principles governing in the construction of contracts, we cite Willes’ R. 332; 2 Comyn on Contracts, 534; Patrick v. Grant, 14 Maine, 233; Chase v. Bradley, 26 Maine, 531.</p> <p>V. The plaintiffs’ rights are not free from reasonable doubts, to say the least. In such case a court of equity does not interfere. North River Steam Co. v. Livingston, 3 Cow. 755; Livingston v. VanIngen, 9 Johns. 585; Snowden v. Noah, Hopkins’ R. 347; Akrill v. Selden, 1 Barb. 316; Olmstead v. Lewis, 6 Barb. 182; Society v. Holsman, 1 Halst. Ch. 126; Warne v. Morris Canal & Bank. Co. 1 Halst. 410; Webster v. S. E. Railway Co., 1 Eng. Law & Eq. Rep. 204; Doughty v. Railroad Co., 7 Halst. 51; Chesapeake & Ohio Co. v. Young, 3 Md. 480.</p> <p>VI. The defendant does not assume to sell an absolute title, but only to the extent of the powers in the plaintiffs’ deed to him, and “not otherwise.” This remark is an answer to all the objections raised to the power of defendant to sell.</p> <p>VII. It is insisted that the vote of the stockholders, referred to in the mortgage, did authorize the execution of such a deed. The attention of the Court is called to the language of the vote itself.</p> <p>But the directors were fully empowered by the fifth section of the charter, without such a vote. The better opinion is, that the directors have sole power to do such business. Angel & Ames on Corp. § 279 ; Corporation By-laws, Art. 14.</p> <p>VIII. The plaintiffs’ denial, that the non-payment of the coupons, executed upon a separate sheet of paper from the bonds themselves, constitutes a breach of the covenants in the mortgage, if not a captious objection, is certainly one of strict law, having no pretence to equitable relief, much less to interposition by injunction. See Act of Legislature of April 4, 1856.</p> <p>IX. The- plaintiffs’ case presents this most remarkable absurdity; — they claim the benefit of an injunction, not for any wrongs perpetrated or threatened to themselves, but to the bondholders, and this without any request of the injured parties.</p> <p>X. Let the plaintiffs pay the bondholders and the defendant, and they at once disarm him. Let them do equity, and they will receive equity. 2 Story’s Eq., § 771; Story’s Eq., § 959, a; Baldwin’s C. C. R. 218.</p> <p>I. The power to grant injunctions is broad and comprehensive. R. S., c. 96, § 11. The case is one of equity jurisdiction, either as one of mortgage or trust.</p> <p>II. The question is, does the bill on its face show a case. 3 Eq. Dig. 438, c. 8; Rose v. Hamilton, 1 Des. 137. The bill shows a case where great wrong or injustice may be done, and is likely to be done.</p> <p>III. We maintain that, upon the facts stated, Myers has no right to possession, no right to sell; and it is no answer, that if so, no wrong is done that may not be redressed at law.</p> <p>IV. The effect of the contemplated proceedings is to be noticed. — 1. Dissolution of corporation. 2. Stoppage of construction. 3. Injury to public. 4. Release of obligations.</p> <p>V. The instances in which this power of the Court is obtained are various and difficult to be enumerated. 2 Story’s Eq. § § 826, 827, 853, 854, 862, 872, note 2, 954; Osborne v. Bank, 9 Wheat. 84.1.</p> <p>VI. The jurisdiction in granting injunctions is a wholesome one, and to be liberally exercised, in the prevention of irreparable injury, and depends on much latitude of discretion in the Court. Kane v. Vandehuger, 1 J. C. R. 12; Fonb. Eq. 52, note; 2 Johns. C. R. 222; 2 Eq. Dig. 64, 68; Observations of Marshall, C. J., in Osborne v. U. S. Bank, 9 Wheat. 841; 6 Curtis’ Con. R. 268; Eden on Injunctions, 1, 12; Waters v. Randall, 6 Met. 483.</p> <p>VII. Precedents, it is said, are not to be found. Equity does not consist of precedents, but of principles. Simmons v. Hannover, 23 Pick. 194.</p> <p>VIII. Regarding the deed to Myers as a mortgage, there is no power to foreclose in the manner proposed, by sale. 7 Johns. 25; 7 Johns. 50; 7 Johns. 46, 48, 49; 2 Cowen, 195, Willson v. Trout; 1 Greenl. Cruise, Title Mortg. c. 1, § 42, p. 97, note on p. 98; Ib. (cites 3 Pick. 484; 2 Wheat. 29; 6 Met. 483; 10 Johns. 185;) 1 Greenl. Cruise, 217, Title Mortg. c. 6, § 2, Title 15.</p> <p>IX. The cancellation of an instrument may be decreed, though it has become a nullity, on the ground, (among others,) that it may subject the party to litigation when the facts are forgotten. 2 Halst. 522, 627.</p> <p>X. The relief sought is perpetual injunction. Same as in Moore v. Veazie, Si Maine, 366; Moore v. Veazie, 32 Maine, 345.</p> <p>XI. As for the argument, that in doubtful cases injunctions will not be granted, see 31 Maine, 378. But there is no doubt of plaintiffs’ right under the charter. If defendant sets up a right which controls it, this must be shown; statute granting possession, equivalent to judgment at law.</p> <p>The R. S., c. 117, § § 20, 21, 23, provides how franchises may be sold on execution. No inference can be drawn, that a railroad franchise is susceptible of such or any other alienation. But, it is asked, is no security afforded by the deed ? Is it wholly void ? What is granted ? I answer, all that can be, the beneficial interest, the income, by analogy to the R. S., c. 117, the right to tolls. This right may be secured by appointment of receivers.</p>

On Report from Nisi Prim, Howard, J., presiding. This was an action of assumpsit upon the following memorandum in writing:— “ In consideration that Samuel H. Tewksbury has this day re-conveyed to me his interest in the Woolen Brick Mill, situated in Oxford, I hereby agree to become responsible to Cornelia E. Blake, wife of Francis Blake of Harrison, for the amount of interest she has in said mill, and to pay over her part, to wit, the amount proportionally due her, when our…

On Exceptions from Nisi Prius, Appleton, J., presiding. Assumpsit brought to recover one third part of a sum of money paid by plaintiff as surety with defendant on a note of which the following is a copy:— “$300. “Lebanon, May 5, 1845. “For value received, we jointly and severally promise to pay the Rochester Bank, or order, three hundred dollars in sixty days and grace. “Alpheus Staples, “William G-errish, “Benj.

On Exceptions from Nisi Prius, Goodenow, J., presiding. This was a writ of scire facias. These defendants, who had at the previous term been adjudged the trustees of A. Hob-son, & als., in a suit brought against the latter by these plaintiffs, moved for leave to disclose further in this suit, which motion was allowed. To this ruling, exceptions were taken by the plaintiffs.

<p>A contract made for the sale and purchase of property, obtained by the concealment of facts material, going to the essence of the contract, and affecting the whole bargain, will be rescinded.</p> <p>Whether the omission, on the part of the defendant, to give information, the concealment of which is complained of, was the result of forgetfulness, or a positive intention to conceal important facts, may not, it seems, be very material.</p> <p>Although the party who seeks to' rescind a contract on the ground of concealment of material facts, may have confirmed the contract after acquiring knowledge of some of the facts concealed; yet, if sufficient facts were unknown to him at the time of the confirmation, to authorize a rescisión, such confirmation cannot effectually operate to prevent it.</p> <p>The opinion of the Court, in Pratt § al., in Equity, v. Philbrook, 33 Maine, 17, reconsidered and affirmed.</p>

<p>On Exceptions from Nisi Prim, Howard, J., presiding.</p> <p>Trespass against the sheriff for acts of his deputy in attaching a stock of goods, alleged to be the property of the plaintiff.</p> <p>The facts sufficiently appear in the opinion of the Court.</p> <p>1. The conversations with the plaintiff’s vendor were inadmissible, because they were hearsay, and not assented to by the plaintiff, or in any manner brought home to his knowledge. The rule admitting the declarations of the plaintiff’s vendor in cases of this kind has limits. 2 Phillips on Ev., Cowan & Hill’s notes, part II, pp. 657, 658.</p> <p>If, on the suggestion of fraud, the Court should limit the admissibility of testimony in proof of it to those declarations and acts of the vendor which were known to, and participated in, by the vendee, the rights of the vendee would be protected. Clark v. Waite, 12 Mass. 439; Bridge v. Eggleston, 14 Mass. 245.</p> <p>The declarations and acts of tbe vendor ought to be admitted de bene esse, to be rejected, if the vendee was not shown to be a participator in the fraud. Such was the rule adopted in a previous trial of this case, and such seems to be the rule in Clarke v. Waite, before cited.</p> <p>2. The defendant was allowed to introduce testimony to declarations of the plaintiff’s vendor, made subsequently to the sale and attachment. This testimony was clearly inadmissible. Bridge v. Eggleston, before cited; Edgell v. Bennett, 7 Verm. 537; 2 Phillips Ev. 655, 656, 662, and cases there cited.</p> <p>Some part of this testimony, it is said, was inadmissible, because the plaintiff’s counsel waived his objection by calling fox all the testimony, if any was to be admitted. Such a call was no waiver of the objection already made. It was proper to have all of a conversation, or all the testimony given, stated, if any was introduced.</p> <p>3. It is said the documentary evidence the plaintiff objected to, was properly admitted, because the reasons for objection were not specifically stated by the plaintiff. It seems to us, that all that a fair and healthful practice requires, is the statement in the exceptions, that the testimony was objected to, and then the Court, on examination, will say whether the objection was well taken, especially when the testimony is documentary. Comstock v. Smith, 23 Maine, 210; Emery v. Vinal, 26 Maine, 295.</p> <p>The statute does not contemplate that the whole discussion had before the Judge should be reported, or that all the reasons for objections shall be reduced to writing. The exceptions are to be reduced to writing in a “ summary way.”</p> <p>4. It is said, that some of the testimony admitted and objected to by plaintiff, was immaterial. But the rule is, that where evidence as to matter of fact, although appearing unimportant, is admitted but objected to, and the Court have no means of ascertaining that it did not have an influence on the minds of the jury, exceptions to such admission must be sustained. Warren v. Walker, 23 Maine, 453.</p> <p>1. The objection made to the declarations of one of the vendors of the plaintiff, goes the length of insisting, that it was not competent for the defendant to show any declarations by one of the vendors, unless made in the bodily presence of the vendee.</p> <p>To maintain the defence, it was necessary to establish two propositions: 1. That the vendors fraudulently intended, &c.</p> <p>2. A participation in a fraudulent intent on the part of the vendees.</p> <p>To prove the fraud of the vendors, their conduct and declarations before the conveyance may be the best evidence. Fraud on the part of the vendee being thus established, a knowledge of the intent of the vendor on the part of the vendee, is to be shown by other circumstances tending to show such knowledge. The first kind of evidence affects the vendor only, unless the defendant succeeds in connecting the vendee with it, and so the course of proof affecting the one or the other, is entirely distinct.</p> <p>As to the position taken, that defendant should have called the vendors of the plaintiff themselves, we have only to say, that the declarations are facts, and not evidence of facts, and may be testified to as well by a third party as by the party who made them. Howe v. Reed, 12 Maine, 518; Bridge v. Eggleston, 14 Mass., cited by plaintiff; Parker v. Merrill & als., 6 Greenl. 41; Foster v. Hall, 12 Pick. 99, 100, and particularly at p. 99.</p> <p>2. As to the second exception, it is not sufficient for counsel when he objects to the testimony as illegal, irrelevant or improper, to state to the Court, that “ he objects” merely. He must inform the Court and the opposing counsel why he objects. This rule is a salutary one in practice and is well settled. Waters v. Gilbert, 2 Cush., last clause in the opinion, at bottom of page 31; Emery v. Vinal, 26 Maine, 303; Com-stock v. Smith, 23 Maine, 203; Holbrook v. Jackson S¡ al., 7 Cush. 154, 155.</p> <p>3. Some of the testimony objected to was immaterial. It is well settled, that the admission of immaterial testimony furnishes no cause of exception. Flint v. Rogers, 15 Maine, 61; 5 Pick. 219 ; 13 Maine, 439 ; 14 Maine, 201; 14 Maine, 141; Smith v. Richards, 16 Maine, 200; 30 Maine, 31.</p> <p>4. It was competent for the defendant to show the declarations of Wm. White, one of the vendors of plaintiff, about the time of the pretended sale. Those made by him as a witness in 1853, were made while the plaintiff was in Court. These declarations, if made to Gilpatrick the judgment creditor, or to Hooper, his clerk, would have been admissible, even if not made under the solemnity of an oath.</p> <p>These declarations were offered to prove the participation of the vendee in the fraud of the vendor.</p> <p>The declarations of a party to a record, “ or of one identified in the interest with him,” are, as against such party, admissible in evidence. The case shows a complicity between the father and the sons, prior to the sale, and that after the sale the father employed the sons as his agents.</p> <p>This evidence was legally admissible as the declarations of Wm. White, made by him “ against his interest,” and because of the privity between him and the plaintiff, the vendee. Where “an unity of design and purpose” has once been established, it may be fairly and reasonably presumed, that the admission of either one, with a view to the prosecution of that purpose, conveys the meaning and intention of all.</p> <p>But the plaintiff waived his objection to this testimony by putting in himself further testimony of the same witness, to rebut that produced by the defendant. The question is not what counsel intended to do, but what was the practical effect of what he did do.</p> <p>5. Where substantial justice has been done the parties by a verdict of a jury, the Court will not examine with a “ critic’s eye” to see whether some irregularity has not taken place at the trial justifying a new trial. Baker v. Briggs, 8 Pick. 126.</p> <p>6. In reply to what is said by plaintiff’s counsel upon the last exception, the defendant’s counsel cited, in addition to cases above, the following: — 1 Stark. Ev. (ed. of 1830,) pp. 37, 38, § 21 j lb. p. 31, §§31, 33; lb. pp. 50, 51, § 32 ; 1 G-reenl. Ev. p. 229, § § 207, 208; 1 G-reenl. Ev. p. 228,-§ 196; 1 Greenl Ev. p. 212, § 180; B. W. Railroad Corporation v. Dana, 1 Gray, 102,103; Wheeler v. Rice, 8 Cush. 208, and the cases referred to by Bigelow, J., p. 208.</p>

<p>Ia actions ex delicto, tlie award of the jury is to be for the amount of the actual damages received by the plaintiff.</p> <p>A party cannot recover damages for being deprived of the use of his real estate so that he could not appropriate it for a certain imaginary purpose, when he has no design so to use it. He may have damages for the injury actually sustained, but no further.</p>

<p>A. was indicted, tried and convicted of the crime of forgery. He took exceptions to certain instructions by the presiding Judge to the jury, which were allowed. At the succeeding term, by leave, he withdrew his exceptions ; whereupon, on the suggestion of the county attorney, the indictment was dismissed, and the defendant discharged without day. A year afterwards, A. was again indicted for a forgery, and the allegations were in all respects similar to those in the first indictment, to which he pleaded a previous conviction in bar.</p> <p>The Court held, that it was a second indictment for the same offence on which he had been already convicted; and that the plea of autre-fois convict was good.</p>

On Motion eor a New Trial, from Nisi Prius, Wells, J., presiding. This was an action of assumpsit on a negotiable promissory note, purporting to be given by defendants Abbott and Frederick B. Fernald to Charles O. Lord, and by him indorsed over to the plaintiff. The defendants severally pleaded the general issue. The verdict was in favor of one of the defendants, Fernald, and silent as to the other.

On Exceptions from Nisi Prius, Cutting, J., presiding. Held: in Polices v. Chadd, 3 Doug. 157, “that it included all men of science, when called upon to speak of matters immediately connected with their especial study.

On Report from Nisi Prius, Cutting, J., presiding. This was an action of assumpsit upon a policy of insurance, bearing date January 17, 1854. The original application is made a part of the case, and is dated January 14, 1854. It is admitted that the buildings insured wore burned May 14, 1854, and the notice of the loss is dated May 15, 1854. The writ bears date September 21, 1854.

<p>On Report from Nisi Prius, Hathaway, J., presiding.</p> <p>Trespass for taking material from plaintiff’s land. The action came into this Court, by appeal from a justice of the peace, before whom it was tried on plea of the general issue. The plaintiff introduced testimony, by which he proved the taking and conversion of the property as alleged in the writ, of the value of twenty dollars or more, from land occupied by him, and in his possession, and that the taking was forbidden by him at the time.</p> <p>In Defence. Defendants offered to prove, that the taking and carrying away of the materials described in the plaintiff’s writ, was for the purpose of constructing the Buckfield Branch Railroad, and that they were used in such construction, and that defendants acted under authority from said railroad corporation, vested in Francis O. J. Smith, and as his agents and workmen, and they introduced testimony tending to establish what they offered to prove. Defendants also introduced an Act of incorporation, entitled “ An Act to establish the Buck-field Branch Railroad Company,” passed by the Legislature of Maine, July 27 th, 1847.</p> <p>The plaintiff proved, that the place from which the property sued for was taken by defendants, was from thirty or forty feet to four rods distant from the place where the railroad was in process of construction, and it was admitted by defendants that the land from which said materials were taken by them, was not land which had been purchased by said railroad company, or taken by them, otherwise than by defendants going on to the same and taking said materials, and that said land was not embraced within the limits of said railroad.</p> <p>Whereupon the case was taken from the jury by consent of parties, and submitted to the Court; and if the Act of incorporation, and the facts offered to be proved by the defendants, constitute a valid defence, the action is to stand for trial; otherwise a default is to be entered, and judgment rendered for the plaintiff for twenty dollars damage and for his costs.</p> <p>The charter, § 1, and the R. S., c. 81, § 2, alike contemplate the taking and use of land and materials without, as well as within, the located limits of the road, for its construction. Such acts, then, judiciously performed, are authorized by law. For acts authorized by law, uo action for tort is maintainable. The remedy provided by the statute, of petition to County Commissioners, for redress is alone available to the injured party. Mason v. Ken. & Portland Railroad Co., 31 Maine, 215, and note 1 to reprint of the same case; vol. 1, American Railway Cases, p. 166, which cites and collects in detail, the following American cases, additional to a long list of English cases, viz.: — Stowell v. Flagg, 15 Mass. 364; Stevens v. Middlesex Canal Co., 16 Mass. 466; Piscataqua Bridge v. New Hampshire Bridge, 1 N. H. 35; Rogers v. Bradshaw, 20 Johns. 135; Knorr v. The Germantown Railroad Co., 5 Whart. 256; Aldrich v. Cheshire Railroad Co., 1 Foster, 359 ; Hatch v. Vermont Central Railroad Co.; Hollister v. Union Co., 9 Conn. 436; See also Dodge al. v. County Com. of Essex, 3 Met. 380, which was a petition of mandamus upon defendants to estimate damages to a building near the line but without the limits of the road; occasioned by blasting rocks. See also Lebanon v. Olcott, 1 N. H. 339; Calking v. Baldwin, 4 Wend. 661.</p>

On Report from Nisi Prius, Appleton, J., presiding. This was a writ of entry to recover possession of a certain farm in the town of Dixfield. The defendant pleaded the general issue, and payment of the notes mentioned in the mortgage from Jacob Newton to John O. Kidder, hereinafter referred to in this case. The demandants then put into the case a deed of quitclaim from John O. Kidder to them, dated April 2,1844, acknowledged the same day, and recorded May 22, 1844.

On Exceptions from Nisi Prius, Wells, J., presiding. This was an action of debt by a collector of taxes for the town of Canton, against the defendant, under the R. S., c. 14, § 75. Plea, general issue. The verdict was for the plaintiff. Several exceptions to the rulings of the presiding Judge were taken by the defendant, but the only one relied on is stated in the opinion of the Court.

<p>Dower may be demanded and assigned by parol.</p> <p>Dower may be assigned by a guardian.</p> <p>By the Act of 1838, c. 342, a woman is entitled to dower, though divorced from her husband on the ground that he had become “ a confirmed, habitual and common drunkardbut the statute cannot have a retro-active operation.</p>

On Exceptions from Nisi Prius, Hathaway, J., presiding. Trespass quare clausum, for breaking and entering the depot of the plaintiffs and conveying away certain spirituous liquors found therein. The defendants justified as officer and aid, acting under a warrant, commanding the officer in the usual form to enter and search the depot and freight house and seize the liquors.

On Exceptions and Motion for New Trial, from Nisi Prius, Rice, J., presiding. This was an action of assumpsit to recover for services as deputy sheriff, performed by order of the defendant as an attorney.

On Report from Nisi Prius, May, J., presiding. This was an action of assumpsit.

<p>On Report from Nisi Prius, Cutting, J., presiding.</p> <p>Assumpsit for money had and received, brought to recover the amount paid in discharge of a school district tax. The plaintiff alleged that the vote passed to raise the money, was at an illegal meeting of the school district.</p> <p>Some of the defects alleged were, that the meeting was convened by virtue of a warrant issued by the district clerk, he not having been authorized thereto; that the notices of the meeting were not posted up in the manner and for the period required by statute; and that no hour of the day was fixed for the meeting in the warrant by which it was called.</p>

<p>L. upon dissolution of a copartnership with A., received as the consideration for his interest in the concern, the notes of the latter, with a mortgage on the late co-partnership property, “ to secure L. for his liability on the partnership debts, for his liability to pay any other debts of A., and for the ultimate payment of the notes.” Afterwards the property was sold, with the consent of the mortgagee, and a portion of the proceeds came into his hands, with which he paid the co-partnership liabilities. The Court held that, by the tenor of the mortgage, it was fairly to be inferred that the avails of that property were to be appropriated, first to indemnify the plaintiff against his company liabilities, and then any balance which might remain should be applied to the payment of the notes.</p>

<p>On Report from Nisi Prius, May, J., presiding.</p> <p>The facts of the case are fully stated in the opinion of the Court.</p> <p>The plaintiff, at the time of the alleged trespass, had in his custody as an officer, a large amount of liquors, which, if not condemned and destroyed by due course of legal procedure, he was holden to restore to the rightful owners. The law has been repealed, upon which they were taken, and he must now either return them to the owners upon demand, or pay their value in money. While he thus held them, the defendants forcibly broke open his barn where they were stored and took them away.</p> <p>The defendants justify this taking by a warrant.</p> <p>The plaintiff objects to the admission of this warrant: —</p> <p>First. That it did not authorize the searching the harn. The authority to search was expressly limited to the house.</p> <p>Second. Because the warrant was without a seal, and consequently void.</p> <p>Third. It does not show that the necessary preliminary steps had been taken.</p> <p>If it was bad for either of the above reasons, then it should not be admitted as a ground of justification, and both it, and all evidence under it, should be ruled out.</p> <p>The taking by defendants being established, what is the defence ?</p> <p>Fletcher, one of defendants, was constable of Augusta, and the other defendants were his aids. Fletcher had a warrant from the municipal judge of Augusta, and by virtue of that he did the acts complained of. This is a sufficient justification, unless there are such defects in the warrant as will render it invalid. Are there any such defects ?</p> <p>1. It may be said that the preliminary oath, to authorize the search of a dwellinghouse, is not recited in the process. But the case finds that in fact it was made, and we contend that for the protection of the officer that is sufficient.</p> <p>2. It may be said that the warrant does not authorize the search of the barn. The language is, “ in a certain dwelling-house in said city of Augusta, and occupied by George W. Jones, being situate on Winter street, so called, and being the same premises occupied by said Jones.” The house, ell and barn are all one continuous building, and by the use of the word, “dwellinghouse,” in a deed, the whole premises would pass, and the description in a warrant need not be any more certain. 17 Maine, 263; 31 Maine, 346; 33 Maine, 564; RS.,c. 81,§5.</p> <p>But if there was any doubt about the word “ dwelling-house” including the barn, there can be none about the word “premises,” including all the buildings and the lot of land on which they stand, and which is used with them.</p> <p>3. Since this is an action of trespass for the original breaking, entering and taking, the subsequent proceedings and discharge of the liquors by the Judge can have no effect. They might have had, if the action had been trover, after the refusal to deliver on the order of the Judge.</p>

On Report from Nisi Prius, Shepley, C. J., presiding. Assumpsit. The suit was commenced August 10, 1852. Service was made on the administrator residing in Massachusetts, Jan. 4, 1853, who appeared at the next term and pleaded in set-off the claim hereafter named.

<p>On Facts Agreed.</p> <p>This was an action of Debt. Plaintiffs claim a sum of money, due to their testatrix from the defendant, as executor of Enoch Jewett’s will. The case was submitted on the following agreed statement:—</p> <p>Enoch Jewett made his will on the sixth day of January,' 1846, in which, after providing for the payment of his debts- and sundry legacies, he gives to Lucretia Jewett, his wife and plaintiffs’ testatrix, the’ use or income of property, in terms following, viz.:—</p> <p>“I give and bequeath to her, (the said Lucretia,) in addition, the use, income or interest of all the personal estate of which I may die possessed, not herein before given and bequeathed to the several legatees mentioned, to have, possess and enjoy to her absolutely, for and during her natural life, and no longer; and the said real and personal estate, the use, interest and income of which I have herein devised and given to my beloved wife, for and during her natural life, upon her decease, I devise and give, and direct to be paid over and delivered to” sundry persons. “ I also direct that the personal estate (the use, interest or income of which I have given to my beloved wife during her natural life,) should not be subject to the disposition, control or management of the legatee for life, but should be under the control and disposition of the. executors, so that at the termination of the life, the said per-' sonal property may, undiminished as far as possible, go over and vest in the persons to whom the same is given as second takers, absolutely;” and he appointed his wife, the said Lucretia, the defendant, and one Palmer, his executors. Administration was committed solely to the defendant. On the 23d of January, 1846, the said Jewett made a codicil to his said will as follows, viz.: after reciting that he had made and published his will, he says, “ and whereas no money in hand was given to my beloved wife Lucretia Jewett, I, the said Jewett, within named, do by this present codicil to my last will and testa ment, ordain and order my executors to pay to Lucretia Jewett aforesaid, on demand, after my decease, five hundred dollars for her own use, besides the income of the personal estate above bequeathedwhich five hundred dollars was paid her immediately after said Jewett’s death. The personal property, which comprised the great bulk of the estate, consisted principally of bank and other stocks, upon which the interest was payable semi-annually. Said Jewett deceased on the last of February, 1846; the widow was paid the income to March 30, 1854, and was annually paid to the 30th of March in each year. She deceased on the 3d of September, 1854; and if the Court should be of opinion that the defendant, as executor of said Jewett’s estate, is liable to pay her executors the income of the life legacy from March 30, 1854, to September 3, 1854, the time of said Lucretia’s death, then the defendant is to be defaulted for the sum of two hundred and seventy-two dollars, with interest from January 1st, 1855, the time of the demand, otherwise a nonsuit is to be ordered.”</p> <p>The plaintiffs, having requested an amendment of the agreed statement so as to show what part of the income of the residue of the estate was from bank stock, and what part from bonds, United States stock and notes, and the defendant not objecting, they annexed the following statement: —</p> <p>“ There are no notes belonging to the estate. A very small portion of the income for the year 1854 arises from interest on money in the executor’s hands.</p> <p>“ The bank dividends were payable on the first Monday in March and September, and were about equal in amount to the interest on the bonds and United States stock, which was payable on the 1st day of January and 1st day of July. The 1st Monday in September, 1854, was the 4th day.</p> <p>“Mrs. Jewett living out of the State, the property was taxed to the executor in Augusta, and from the gross income of the estate that tax was payable, also the interest of Yirginie H. Era’s, Sally J. Earley’s and J. T. Jewett’s legacy. So that it will be sufficiently accurate for the purposes of this case to consider half the income or interest to be paid Mrs. Jewett to arise from bank dividends, and half from interest on bonds and United States stock.”</p> <p>First. The interest which Lucretia Jewett had by the will of Enoch Jewett in the residue of his estate is not an annuity, or a charge of a definite annual sum upon the property, but it is an estate for her life in all the residue of the personal estate.</p> <p>Second. The provision made by the testator for his wife was intended for her support from year to year, while she lived, without reference to her means of support from other sources.</p> <p>It is a well established principle of law, that a provision of income for the maintenance of a- wife or child shall always be apportioned. The reason is, that the expense of living continues to the last day of life. Howell v. Hanforth, 2 Vm. Blackstone, 1016; Hay v. Palmer, 2 Peere Williams, 501; 1 Williams on Executors, 710.</p> <p>Third. The residue, in which a life estate was given by the will to his widow, consisted, as appears from the will, partly of bank stock, partly of United States government stock, partly of city bonds and partly of notes of hand. If any part of the yearly income is to be exempt from apportionment to the time of her decease, it should be only the dividends from the bank stock. Whether there will be a dividend of profits cannot with certainty be ascertained until the semiannual accounts are made up, and it may in some sense be said not to have accrued until declared. But the income from promissory notes, city bonds and government stocks is interest; they are loans to tbe makers of tbe notes or bonds or scrip on which interest is paid to the lender. But interest accrues and is due from day to day, and every day, although by the terms of the loan it may be payable at a future day, and interest, therefore, is apportionable. 1 Williams on Executors, 711.</p> <p>Fourth. There was no definite period of the year at which the income of the residue was payable to the widow. She was entitled to it from time to time as it accrued and was collected by the executor.</p> <p>Fifth. If any one time in the year is to be selected as the time from which semi-annual payments are to be made of the income to the widow, it must be the time of the death of Enoch Jewett, which was the last day of February. Her semi-annual payments would then be due the last day of August and the last day of February in each year. She should then, on this principle, be paid all the income that had accrued or become payable on or before the last day of August, 1854.</p> <p>Sixth. If^the Court should be of opinion that the dividends on the bank stock should not be apportioned to the time of the death of the widow, but that the interest on the bonds, notes and government stocks should be apportioned, the plaintiffs consent and request that the statement of facts agreed upon may be amended, so as to show what portion of the income from these different sources became payable between the last of February and the third of September, 1854, and that the sum to be found due be computed accordingly.</p> <p>But if this amendment cannot be made, the plaintiffs claim that the whole amount claimed in the statement must be found due to them, because the burden of showing what part of the income is exempt from apportionment should properly fall on the executor of Enoch Jewett; and because the claim for maintenance is a favored one; and because it appears that one semi-annual payment on all the stocks must have occurred between the last of February, 1854, and the third of September, 1854.</p> <p>The plaintiffs contend that the interest given to Lucretia •Jewett by the will is an estate for life in all the residue of the personal estate, and not an annuity or a charge of a definite annual sum upon the property.</p> <p>This cannot be, for the personal property, of which she is to have the use, income or interest, goes into the hands of the executor, and not into her possession or under her control.</p> <p>The language of the will is, “ I bequeath to her the use, income or interest, of all the personal estate,” &c., “to have, possess and enjoy, to her absolutely, for and during her natural life, and no longerthe obvious meaning of which is, that she should have the income during her life; she can have no other or greater interest, as the will expressly prohibits the principal from being placed in her hands, or under her •control.</p> <p>The first expression of “life estate,” in connexion with personal property, is a negative term, as “I devise a life estate only,” used in advance of the limitation in the clause making the bequest, and also used in connexion with and referring to the real estate. She was to have the real estate in possession, and only “the use, income or interest of the personal estate” without the possession.</p> <p>The expression, relating to the remainder of the property he has given her, “for and during her natural life,” is no stronger than the limitation of the bequest, and is here used by way of recital, and as descriptive of the property, and not to define the extent of the legatee’s interest therein, so that authority to apportion cannot be drawn from the terms of the bequest, making the interest of the widow a life estate in the property itself.</p> <p>The intervention of a trustee, enabling the income to be apportioned, does not authorize or make it his duty so to do, and no stronger argument can be drawn from this, than could be from a bequest of an annuity in express terms.</p> <p>Vesting the property in the executor or trustee, was necessary to preserve the remainder, and this brings the widow’s interest under those rules of law, which define her rights as to the amount and times of payment.</p> <p>It is attempted to take this case from the general rule by considering the provision made for the widow as one of maintenance. This construction cannot obtain, for it does not appear from the will that maintenance was contemplated.</p> <p>The authorities cited by plaintiffs are exceptions to the general rule relating to apportionment of annuities; they are cases of bequest specifically for maintenance.</p> <p>If the testator, in the case at bar, had said in his will, “ I give and bequeath to my wife an annuity of §600, to be paid to her during her natural life by my executor,” the argument of the plaintiffs in relation to maintenance and apportionment would be equally applicable and forcible. Yet this would be an annuity payable at the end of each year, and could not be apportioned.</p> <p>The defendant maintains the bequest to the widow to be (if not an annuity,) in the nature of an annuity. It is not a fixed sum, but the interest or income of the residue of the property, a sum to be ascertained. The will being silent as to the time of payment, the law fixes it as annual; and this was the intention of the testator, as appears from the considerations which have been presented.</p> <p>Interest or income, the Court say, in Clark v. Foster, 8 Met. 568, is the net income, after deducting the taxes and expenses incurred from the management of the property, which in this case were annual expenses. The widow living out of the State, the property was taxed to the executor in Augusta. The net income could not be ascertained till the end of the year, when the taxes and expenses shall have become known; and the amount cannot be said to be due and payable till the time arrives when the amount can be made certain. Hall v. Hall, 2 McCord, c. 281; Pool v. Ward, 21 Pick. 398; 1 Williams’ Executors, 521; 5 Binney, 415; 18 Pick. 123.</p>

This was a writ of Error, under the law of 1852, to reverse a judgment in which. Spencer was plaintiff, and the plaintiffs in error defendants. The following errors are assigned, viz.: — 1. That on the issue of law raised on the special pleas in bar in the case, judgment was rendered for Spencer as plaintiff, while the general issue was pending, and when it had not been tried. 2.

On Facts Agreed, from Nisi Prius, Shepley, C. J., presiding. This suit was upon a conditional note made by defendant, payable to plaintiff, for $1100, with interest. For this bearing tbe following facts were considered as proved: — That the conditions named in the note had been performed before the suit was commenced.

<p>A. purchased two lots of land, by one of two plans which represented them differently, and then sold one of the lots to B. by the other plan ; Held, that the latter plan must govern in ascertaining B’s rights.</p> <p>Evidence with reference to the plan by which a purchase is made, in conflict with the language of the deed itself, is not admissible.</p> <p>The subsequent acts and declarations of parties to a deed, are not sufficient to destroy or vary their legal rights, as exhibited in the deed.</p>

<p>A. executed to B. a bill of sale with covenants of warranty, of three-eigbths of a vessel, and C. and D. executed to him alike bill of sale of four-eighths of the same vessel; Held, that B. would have a remedy upon the covenants in his bills of sale, for the money paid by him to discharge an incumbrance upon the vessel, existing at the time of the sale.</p> <p>But no action as upon a joint promise against the three can be maintained.</p> <p>The promise of one, without the authority of the others, that if B. paid off the incumbrance, «• they would settle the balance with him,” imposed no new obligation upon the other two, nor authorized an action against the three as joint promisors.</p> <p>After the discharge of the incumbrances by B., the mere submission of his claim by all the parties to referees without any award thereon, would not change the nature of his claim, or the liability of the other parties.</p> <p>A recommendation to pay a certain amount is not an award.</p>

On Exceptions from Nisi Prius, Rice, J., presiding. Held: that “ the presiding Judge was correct in excluding the testimony tending to prove that the complainant had not suffered damage, from the consideration of the jury-” The question, then, as to damages, should have been reserved “for the other tribunal.” The Judge should have told the jury, that if defendants flowed, some damages would…

<p>On Report from Nisi Prius, Mat, J., presiding.</p> <p>This was an action of Trespass for an injury to a dam built by the plaintiff on the land of the defendant.</p> <p>The plaintiff claimed the right to build the dam, the removal of which by defendant was the trespass complained of, under a verbal license from one Cutler, who held a bond of the premises from one Pingree. Southwick, the grantor of Pingree, had conveyed the same to the defendant, with certain reservations. The plaintiff claimed, that all the interest of Southwick in said reservations were in him by force of said conveyance, bond and verbal license. It did not appear, however, that the reservation in the deed from Southwick was for the benefit of the mills occupied by plaintiff.</p> <p>The reservation referred to is given in full in the opinion of the Court.</p> <p>■Vose, for defendant, after reciting the facts, insisted, —</p> <p>1. That the Southwick deed could give no right to flow lands of which Southwick was never owner.</p> <p>2. But, suppose the Southwick deed gave the right, to what extent, and to whom was it given ? The purpose is expressed in the deed. The right is limited to the grantor and his successors, in order to carry on the business of a tannery, located at some distance from the plaintiff’s mills, and for that purpose alone.</p> <p>8. Supposing, (which is not admitted,) that Cutler holds Southwick’s right under the bond from Pingree; Cutler could not transfer that right to the plaintiff to enable him to carry on his saw-mill, below the tannery.</p> <p>4. The transfer, if any, from Cutler was verbal. Such a right cannot be transferred, either at common law or by statute, by parol. Angelí on Water Courses, (ed. of 1824,) 63; 4 Johns. 81; R. S., c. 26, § 3.</p> <p>5. The defendant was justified in removing the dam as a private nuisance. Ang. on Wat. Cour., 14, 15; Hodges v. Raymond & al. 3 Taunt. 99.</p> <p>1. The defendant assisted in building the dam, and was present when it was built, and made no objection to it. Erom these facts, the Court may infer a license. Roe v. Wilson, 11 East, 56; 1 B. & C. 243.</p> <p>2. Cutler had a right to build the dam, and to permit the plaintiff to build it for him.</p> <p>3. The plaintiff had a right by statute to build the dam. R. S., c. 126, p. 560.</p> <p>4. If plaintiff had the right to build the dam either by license or by statute, the defendant is a trespasser in cutting it away. Richer v. Kelley, 1 Maine, 111.</p>

<p>On Report from Nisi Prius, May, J., presiding.</p> <p>Assumpsit against defendant as indorser of five drafts and notes, all of which were payable out of the State.</p> <p>The general issue was pleaded. The specifications of defence were, that the defendant had no notice of the non-payment of said drafts, and also, that the plaintiffs had taken and reserved more than the legal rate of interest on said drafts and notes.</p> <p>The evidence sbeing in, the case was withdrawn from the jury, and submitted to the full Court, by agreement of the parties, authorizing the Court to draw such inferences as a jury might legally draw from such of the testimony as was legally admissible, and to render such judgment as the law and evidence should require.</p> <p>If the second specification of defence is made out, the Court are to render such judgment as to damages and costs as the case requires.</p> <p>In case the plaintiffs are entitled to damages, the Court are to fix the amount.</p> <p>contended that they had introduced the protests of the notaries, under their hands and seals, stating that they presented the several drafts and notes at the places where they were payable, on the last day of grace; that payment was refused; and that they duly and officially notified the drawers and indorsers, under cover, to the address of Edward G-. Hoag, cashier of the Ticonic Bank, Waterville Maine, per mail..</p> <p>These protests are evidence of all the facts stated therein. E. S., c. 44, § 12; 23 Maine, 553.</p> <p>Mr. Hoag testified that he delivered the notices to the defendant on the day of their arrival at the Waterville post office, when the mail arrived in seasffn'; -ii*nbt,' early next morning. This is using due diligence,' and the defendant should be defaulted for the amounts of the notes and drafts, damages, interest and costs of protest.</p> <p>The damages are three per cent.' of the amount. E. S., c. 115, § 110.</p> <p>argued that the evidence by a notarial protest is prescribed in E. S., c. 44, § § 6, 12. By the former section his protests are required to be recorded in a book of records, and his copies or certificates shall be received as evidence of what he has done. By the latter section, “the protest duly certified under his hand and seal” is legal evidence of the' facts stated in such protest.</p> <p>The protest is the declaration in writing of what he has done, under his hand and seal. It requires the subscription of his name and the affixing of his notarial seal to make up the “protest.” The statute appears to require something more to be done to make his official doings legal evidence. It does not contemplate the introduction of the original protest, but a certified copy of it.</p> <p>The papers introduced appear to be the original protests, and if such, then they are not the statute evidence. If it is said, if they are the original, they ought to answer equally as well as copies, the reply is, that the admission of such testimony is a mere statute regulation, and must bo strictly pursued.</p> <p>The protest which contains the doings of the notary, his name and seal, must be duly certified under his hand and official seal before it is legal evidence.</p>

<p>On Report from Nisi Prius, Gutting, J., presiding.</p> <p>This was an Action of the Case for disturbing a way which the plaintiffs claimed across land of the late Elijah Fairbanks, jr., the father of the defendant.</p> <p>After the evidence was out, the cause was taken from the jury by consent, and referred to the law Court, with power to find such facts and draw such inferences as a jury might. If, upon the evidence, the Court were of opinion, that the plaintiffs had a right of way, as alleged by them, the defendant was to be defaulted for nominal damages, otherwise, the plaintiffs were to become nonsuit.</p> <p>The facts in the case are fully stated in the opinion of the Court.</p> <p>1. The reservation in the deed from E. Fairbanks, sen., to E. Fairbanks, jr., is “ to himself,” and not to his heirs and assigns. It is a reservation during the life of the grantor, and at his decease, the right ceased.</p> <p>The grant is general, and every thing passed except what was clearly reserved.</p> <p>The instrument is to be construed most strongly against the grantor.</p> <p>There are not only no words of inheritance, but there are those of limitation. The words “ to myself,” exclude by implication, all others at his decease. 2 Jarmon on Wills, 170; Kirby v. Holmes, 2 Wilson, 8.</p> <p>In a later deed of other lands, when the grantor wished to make reservations of a similar right perpetual, he employed . appropriate terms to do so. This fact shows the language to have been designedly selected, and the rest of the phrase, the “ privilege of passing,” tends also to show the intention that the reservation should not be perpetual.</p> <p>2. The plaintiffs acquired no right of way across this piece of land, by their deed from Jesse L. Fairbanks, for the plain reason that he had none to convey. His grantor, Elijah, sen., had conveyed this tract to their grantor, Jesse L., in 1811, eight years before he deeded the plaintiffs’ farm.</p> <p>3. Elijah, jr.’s acts are not sufficient to enlarge the reservation.</p> <p>4. No right has been acquired by adverse user. Such user, to give a right, must be under such circumstances as to give the general owner to understand that a right was being claimed.</p> <p>1. The reservation in the deed of 1811, was for the benefit of the grantor’s land south of the pond, and was only beneficial to the grantor, as the owner of that land. So it passed to his grantees, when he conveyed the land south of the pond, as appurtenant to that land. White v. Crawford, 10 Mass. 183; Mendell al. v. Delano, 7 Met. 176; Bowen fy al. v. Conner, 6 Cush. 132.</p> <p>2. The authorities cited require that this reservation should be construed, if necessary, as an exception of this right of way for the use of the land south of the pond, and that it should in this form avail to the grantor, his heirs and assigns, as occupants of that land. The authorities also show, that the effect of such a deed is the same as if .the deed had been in common form with no reservation, and the grantee at the same time had given back a deed conveying this right of way.</p> <p>3. The road was as important and useful to Jesse L. and John, as it had been to their father.</p> <p>The parties to the family division made in 1819, understood that they had mutual and reciprocal rights of way over each other’s land, and they always afterwards acted upon this view of the subject.</p> <p>The acts of the parties through the whole period from 1819, till after the death of Elijah, jr., furnish a contemporaneous, practical construction of the deeds. This intention, the plaintiffs claim, should be effectuated, if it can be done without violating any well established principle df law.</p> <p>4. The plaintiffs contend, that the defendant is estopped to deny this right of way; — 1. By the deed of June 3, 1811, from his grandfather to his father. Mendell $ al. v. Delano, 7 Met. 179; Bowen al v. Conner, 6 Cush. 132. — 2. By the acts and declarations of his father from 1819, to his death.</p> <p>5. The plaintiffs also contend, that as E. Fairbanks, jr., availed himself of the family settlement made Jan. 22, 1819, so far as a right of way was concerned over John and Jesse L’s lot, then conveyed to him south of Jesse’s lot, he should be estopped to deny to them the reciprocal right to cross his land for the use of theirs.</p> <p>6. The plaintiffs are entitled to recover, because they and Jesse L., under whom they claim, have had the peaceable, uninterrupted, and adverse use of this way more than twenty years before the disturbance complained of. B. S., c. 147, § 14; 2 G-reenl. Ev. § 539; 2 Greenl. Cruise, 87, and cases there cited; Bolivar Man. Co. v. Neponsit Man. Co., 16 Pick. 241; Melvin v. Whitney, 10 Pick. 295.</p> <p>7. John and Jesse L. did not occupy under a mistake, as defendant contends, but under a void grant, which would be clearly a disseizin. 1 G-reenl. Cruise, 52, note 3.</p>

On Report from Nisi Prius, Cutting, J., presiding. This was an action of Trespass quart clausum, for breaking and entering the plaintiff’s close situated in Eayette, and being the north part of lot No. 41, in said town. The defendant owned the south part of the same lot. Both claimed title from the same grantor, through sundry mesne conveyances.

On Beport from Nisi Prius, Mat, J., presiding. Assumpsit against the defendant as indorser of a note, of which the following is a copy: — “$1000. “ Waterville, March 2, 1855. “ Three months from date, for value received, we promise to pay James Stackpole, or order, at Ticonic Bank, one thous- and dollars. (Signed) “ E. B. Blanchard, “D. L. Stilson.” (Indorsed) “James Stackpole.” The plea was the general issue; the specification of defence was denial of notice of non-payment.

Exceptions ou trustee’s disclosure. From Nisi Prius, Rice, J., presiding. The trustee in this case, having made a disclosure, was discharged, to which the plaintiff excepted. The case was submitted to the full Court without argument.

<p>Under the Revised Statutes, brief statements of matters of defence, aside from such as would come under the general issue, must be certain to a common intent, as much as if stated in a special plea.</p> <p>A notice of special matter to be given in evidence in defence under the general issue, must contain as distinct an allegation of the grounds of defence as would be required in a special plea, though not set forth with the same technicality.</p> <p>But rules of special pleading can rarely be applied to brief statements and counter brief statements. The object of allowing these was to obviate that exactness of allegation and denial, by which parties were sometimes so entangled as to prevent a trial upon the merits.</p> <p>It has been a favorite object of modern legislation to divest legal proceedings of abstruse technicalities. Hence the abolition of special pleading.</p> <p>Another object has been to facilitate the administration of justice and to reduce the expenses incident thereto. Hence, actions are required to be entered on the first day of the term, and not later, except by special leave; and writs to be filed as early as the second day. Hence also, within a reasonable time, specifications of the nature and grounds of defence are required to be filed, and all allegations of the writ and declaration, not denied, are to be regarded as admitted at the trial.</p> <p>The rule of Court, requiring that specifications of the nature and grounds of defence shall be filed in all actions, in accordance with the statute of March 16th, 1855, c. 174, § 4; that the defence shall in all cases be confined to the grounds therein set forth; and that all allegations in the writ and declaration, not therein specifically denied, shall be regarded as admitted for the purposes of the trial, is not repugnant to the provision of R. S., c. 115, § 18, abolishing special pleading, but is in strict harmony therewith and adapted to give it force and effect.</p>

<p>The recital in the caption of a deposition, that the deponent “being first duly sworn, gave his aforesaid deposition,” imports that he was sworn ac- ' cording to law, before giving it.</p> <p>The acts or declarations of a vendor, made after other persons have acquired separate rights in the same subject matter, cannot be received to disparage their title.</p>

On Report from Nisi Prius, Rice, J., presiding. These were actions brought by attaching creditors against the sheriff of the county for his own default and that of his deputy, in not making a proper disposition of goods attached by the deputy. The actions were defaulted and presented together for hearing in damages. The attachment in the action Howe & al. v. Foster, was subject to that in Lovett & al. v. same. The other facts will be found in the opinion of the Court.

<p>On Demurrer.</p> <p>This was an Action of Debt on a recognizance.</p> <p>A general demurrer was pleaded to the writ.</p> <p>The points put in issue in the case fully appear in the opinion of the Court.</p>

<p>On Exceptions from Nisi Prius, Goodenow, J., presiding.</p> <p>This was an action of Assumpsit on a promissory note. The defence was payment to the payee of the note, prior to his transfer of it, over due, to the plaintiff.</p>

On Exceptions from Nisi Prius, Hathaway, J., presiding. This action was upon a promissory note given to one Strickland, and by him indorsed.

<p>On Exceptions from Nisi Prius, Appleton, J., presiding.</p> <p>This was an action of trespass. All the material facts in the case are stated in the opinion of the Court.</p> <p>1. In the construction of a grant, the Court will take into consideration the circumstances attending the transaction, the particular situation of the parties, and of the thing granted, in order to ascertain the intent of the parties. And when the intention is thus ascertained, the Court will carry it into effect, if the rules of law will permit it. Adams v. Frothing-ham, 3 Mass. 352; Wallis v. Wallis, 4 Mass. 135 ; Marshall v. FisJce, 6 Mass. 24; Pray v. Pierce, T Mass. 381; Litchfield v. Cudworth, 15 Pick. 23; Frost v. Spaulding, 19 Pick. 445.</p> <p>2. Doubtful words 'and provisions in a deed poll, are to be taken most strongly against the grantor. Adams v. Frothing-ham, 3 Mass. 352; Worthington v. Hylyer, 4 Mass. 196.</p> <p>3. If the word in the deed .is “sand,” instead of “land,”1 this action can be maintained, because it'conveys “ rights” to the “ sand,” and the whole beach being sand during the ebbs of the tide, the whole was the property of the plaintiff and subject to his control.</p> <p>The Court held, in Howard v. Lincoln, 1 Shepley, 122, that a reservation of all the trees standing and growing, reserved also'the land, and that trespass quare clausum would lie. Certainly, here every thing being transferred bnt the water, the land passed under the term “ sand.”</p>

On Report from Nisi Prius, Goodenow, J., presiding. Assumpsit for money had and received. After the plaintiffs’ evidence was in, the defendant offered a statute submission of the matter in controversy, and an award thereon, made out of Court, after the action for the same cause was commenced, and contended that this proceeding operated as a discontinuance of the suit; and thereupon he moved that it be dismissed.

<p>On Facts Agreed.</p> <p>Assumpsit, brought to recover of defendant the plaintiffs’ share of the use or rent of a certain printing press owned in common.</p> <p>The plaintiffs owned two-ninths of the said press, the defendant owned five-ninths of it and the remaining two-ninths' were owned by persons not parties to the suit. The press had been used by defendant, as he had occasion to use it in his business, which was that of a printer, for the space of sis years, one month and sixteen days. It was admitted that, at a reasonable time prior to the commencement of this suit, and after the use of the press by defendant as aforesaid, the plaintiffs had requested the defendant to pay them for said use. It was agreed that if, upon the above facts, the plaintiffs were entitled to recover the defendant should be defaulted, otherwise the plaintiffs become nonsuit.</p> <p>contended that a remedy was provided for this and similar cases by the Act of Aug. 8, 1848.</p> <p>It would be a reproach upon the law, if the defendant could not be compelled to pay what he admits to be justly due.</p> <p>At common law, the defendant would be liable for the use and income of the property received and enjoyed exclusively by him.</p> <p>Plaintiffs and defendant were tenants in common of said printing press. One tenant in common of a chattel cannot recover of his co-tenant for the use and occupation of the Common property. Sargent v. Parsons, 12 Mass. 149; Ballou & als. v. Wood & als., 8 Cush. 48; Martyn v. Knowllys, 8 T. R., 145; McCrillis v. Banks, 19 Yer., (4 Washb.,) 442.</p> <p>There is nothing to show that defendant used said press more than his proportion of the time, or that he in any way interfered with the rights of the plaintiffs.</p> <p>If there were no other defence this action cannot be sustained, because all the owners of said press are not made plaintiffs in the suit.</p> <p>To maintain an action under the stat. of 1848, the plaintiff should allege and prove the receipt by the defendant of the whole, or more than his share, of the rents and profits or income, without the consent of the co-tenant. This he has not done.</p>

On Exceptions from Nisi Prius, Appleton, J., presiding. Held: though an excess of authority, that Lord Lansdale was liable for the injury. See also Horn v. Nichols, 1 Salk. 289, and Jones v. Hart, 2 Salk. 441; 3 Campb. 403.

<p>An action commenced before tbe expiration of a Hen, and brought to enforce it, may be prosecuted to judgment and execution against an administrator or executor, nothwithstanding the death and insolvency of the debtor.</p> <p>So also, in case of a defendant under guardianship by reason of insanity, whose estate has been duly represented insolvent.</p>

On Report from Nisi Prius, May, J., presiding. Assumpsit on a note payable to plaintiffs or order, on demand, with interest. Samuel S. Curtis, Oscar H. Sampson and Joseph Curtis, doing business under the firm name of Curtis, Sampson & Co., were admitted, on petition as subsequent attaching creditors, to defend this suit. After the evidence was in, the case was withdrawn from the jury, and referred to the full Court on report.

On Exceptions from Nisi Prius, Appleton, J., presiding. This was an action of Assumpsit upon a promissory note, purporting to be signed by the defendants. A. J. Pay was defaulted. Daniel Day pleaded the general issue, and made affidavit denying his signature to the note in suit. The facts will be found fully stated in the opinion of the Court. The counsel for the defendants requested the Court to instruct the jury:— 1.

On Report from Nisi Prius, Appleton, J., presiding. This was an action of Assumpsit to recover the value of the plaintiffs’ labor in making a set of moulds, by which to construct the ship on which the plaintiffs claim a lien, and for materials used in making such moulds. The plea was the general issue, and a brief statement alleging that the claim of the plaintiffs did not constitute a lien claim.

In Equity. Exceptions from Nisi Prius, Shepley, O. J., presiding. The question in this case, was simply as to the time of filing in the •clerk’s office, the items of costs claimed to be allowed. The circumstances under which application for leave to file the claim for costs, was made, sufficiently appear in the opinion of the Court.

On Report from Nisi Prius, May, J., presiding. This was an action of trover to recover the value of a quantity of hay, belonging to the plaintiff, which he had intrusted to the defendant, as his factor, to sell in Wiscasset at a specified price. The defendant, however, without instructions to that effect, sent it to Boston, and there sold it. 1. For an agent to sell at an under price is no conversion, and trover does not lie.

<p>A wife cannot maintain an action against her husband.</p> <p>If, in an action against him by the wife, he fails properly to plead the coverture in bar, and the case is determined in his favor, he is not entitled to recover costs.</p> <p>Where the questions in issue in a suit have been referred, under rule of Court, no exception to the misjoinder of parties can be taken advantage of on the acceptance of the report, unless the objection is specially set forth and submitted to the Court.</p> <p>It is within the discretion of the presiding Judge to grant delay, on the acceptance of the report of referees.</p> <p>Referees may receive or reject testimony, which at common law would be inadmissible. They are the exclusive judges of the force and effect of the testimony received, and of the legal rights of the parties resulting therefrom.</p>

<p>On Exceptions from Nisi Prius, May, J., presiding.</p> <p>This was an action of trespass quare clausum. Plea, general issue, with a brief statement.</p> <p>After the evidence was in, the Court instructed the jury that it was a rule or maxim of law, that if a witness was willfully and corruptly false in any one material statement, and -they were fully satisfied of that fact, they might properly regard such a witness unworthy of belief, and no credit ought to be given to his testimony in any one particular or respect, any further than his testimony was corroborated by other evidence in the case; and they would consider whether such rule or maxim did not commend itself to their common sense, and if it did they might properly act upon it.</p> <p>They were further instructed, that they were the sole judges of the credit to be given to any and all the witnesses in the case. The plaintiff excepted to the instructions.</p> <p>The verdict was for the defendant.</p> <p>1. There was error in the ruling of the Court touching the declarations made by plaintiff to Hutchins relating to depositions not offered in the case.</p> <p>2. There was error in the direction of the Court to the jury, touching the supposed maxim of law, “falsus in uno,falsus in omnibus.”</p> <p>argued that the instructions to the jury were well warranted by the authorities. 1 Starkie’s Ev. 523, part 3, § 87.</p>

On Report from Nisi Prius, Tenney, O. J., presiding. This was an action of the case, in which the plaintiffs, Daniel Sidelinger, William Mathews and Benjamin Mathews, as owners of a saw-mill on the south side of Medomac river, claimed to recover damages of the defendants, John Hagar, Andrew S. Sidelinger and Henry Law, alleged owners of a stave-mill on the north side of the same river, for the diversion of water from the plaintiffs’ mill by the defendants, in the use of…

<p>A warrant against the person, issued hy an inferior Court, affords no protection to the officer serving it, when the Court has no jurisdiction over the subject matter of the offence, or when it is apparent on the face of the process, that the Court has exceeded its authority.</p> <p>A warrant, issued by a justice of the peace, which, may be lawfully resisted, or one by virtue of which, the person arrested would be released from arrest on habeas corpus, is a warrant which the magistrate had no authority to issue.</p> <p>Such a warrant an officer need not obey, and at common law he will not be protected by it.</p> <p>When the warrant is imperfectly expressed, the officer may be bound to act, if the subject matter be within the jurisdiction of the magistrate.</p> <p>When no cause is expressed in the warrant, there is no question as to the want of jurisdiction.</p> <p>When the process is in rem, the same general principles are applicable.</p> <p>The rights of the officer are to be determined upon what is apparent on the face of the warrant. He is not required to look beyond his process, nor is he to be held responsible for antecedent defects or informalities.</p> <p>The provision in § 16, of the Act of 1851, that no action of any kind shall be maintained in this State “ for the recovery or possession of spirituous liquors or the value thereof,” the same being kept for sale in violation of law, is constitutional.</p>

On Exceptions from Nisi Brius, Cutting, J., presiding. This was an action of Assumpsit on a check, payable to J. B. P., or bearer. At the trial, the plaintiff read the check declared upon, and proved that, at the maturity of the check, Paulk had no funds in the bank, and never had any there.

On Exceptions from Nisi Prius, Hathaway, J., presiding. Trespass. Plea, general issue and justification under a mittimus.

On Report from Nisi Prius, Cutting, J., presiding. This was an action of Assumpsit to recover three hundred dollars, alleged to have been received by the defendant for the sale of a certain lot of land in Bangor, as agent of the plaintiff’s intestate.

<p>A. and B., as counselors at law, commenced, at the request of D., and prosecuted to judgment, an action in which. C. and D., alleged co-partners, were plaintiffs. They afterwards sued the latter for their fees. D. was defaulted, and C. denied that he was ever the partner of D., or authorized or was interested in the original suit. The Court held, that the acts and doings of the plaintiffs in Court, without other proof of notice to defendant C. than arose merely from the long continuance of the suit in Court in the name of C. and D., were not sufficient evidence of partnership, or of promise on the part of C. to entitle the plaintiffs to recover against him.</p> <p>Attorneys are placed upon no better footing than other men, for the recovery of their fees.</p> <p>It is a general rule that special authority to bring a suit must be shown by the attorney.</p> <p>Where the plaintiff’s appearance is seasonably called for, the attorney’s employment must be shown; but if not called for at the first term, it will be presumed;</p> <p>Whether an attorney could legally prove his retainer and the services performed, by his suppletory oath, (Codman § al. v. Caldwell, 31 Maine, 560,) dubitatur.</p>

<p>The absence of previous or contemporaneous assent to a transaction, renders its ultimate validity contingent, it being doubtful whether the necessary ratification will ever be given.</p> <p>It follows that a subsequent assent does not relate back so as to prejudice a party, whose conduct has been guided by the transaction as it actually occurred.</p> <p>Still less will a party be injuriously affected by a subsequent assent to, or affirmation of an act, if the party assenting or affirming had, when the act was first communicated, disaffirmed and repudiated it.</p> <p>Whether the payment of a debt, after it has been put in suit, must be specially pleaded in bar to the further maintenance of the action, guare.</p>

On Motion for New Trial, from Nisi Prius, Cutting, J., presiding. The facts in this case are fully stated in the opinion of the Court.

On Report from Nisi Prius, Cutting, J., presiding. This was Assumpsit for money* had and received and money paid, &g., and was brought to recover the sum of $210, and interest, paid by plaintiff as surety for defendant on a bond given to one E. G. Vaughan, conditioned to save him harmless from certain debts assumed by defendant. General issue pleaded, and also bankruptcy of defendant.

<p>A conveyance in trust, either secret or expressed, of real estate, made or procured to be made by one largely indebted and insolvent, for the purpose of defrauding creditors, is void both as to existing and subsequent creditors.</p> <p>A. mortgages his real estate to the assignor of B., and allows the mortgage to be foreclosed by B., with the understanding that he shall be allowed to redeem notwithstanding the foreclosure. A. then, with the design of defrauding his creditors, procures B. to convey to C., in trust for A’s wife and children, and, in certain contingencies, for his own benefit; — Held, that the transaction was void £is to creditors.</p> <p>The amount of the mortgage, or other sum, having been paid by A., (grantor and debtor,) to B., for the conveyance as aforesaid, the title to the premises will, “ in equity,” for the purpose of protecting the rights of the creditor whom there was an attempt to defraud, be held to be in A. and not where the form of the conveyance would seem to place it.</p>

<p>A prochein ami is not necessarily one of kin, but may be “ any one Who will undertake the infant’s cause,” and is, according to the theory of the law, appointed by the Court.</p> <p>A prochein ami is not, under our statutes, a party to the suit in such a sense as to make him responsible for costs.</p> <p>Neither is he so a party to the suit as to have rendered either himself or his wife incompetent witnesses, prior to the passage of the statute of 1856, c. 266.</p>

On Facts Agreed. From Nisi Prius. Assumpsit to recover for supplies furnished to Mrs. Sarah Ann Kavenagh and children, paupers, being the wife and children of Andrew Kavenagh. The only question was as to the settlement. Mrs. Kavenagh was born and had her' settlement in the town of Brewer, by derivation from her father, who had his settlement there on March 16, 1851.

On Report from Nisi Prius, Cutting, J., presiding. This was an action of Assumpsit.

On Beport from Nisi Prius, Cutting, J., presiding. This was an action of Assumpsit for labor in driving logs, the plaintiff claiming a lien under the statute provision giving to laborers a lien on lumber.

This was an action of Trespass for talcing liquors, the property of the plaintiff. Plea, the general issue, with brief statement of justification as an officer, and taking under warrant.

<p>Bill in Equity.</p> <p>The cause was heard upon Bill, Answers and Proof.</p> <p>The facts of the case are sufficiently stated in the opinion of the Court. The following diagram will serve to illustrate the mistake in the description of the levy, against which relief was sought by the bill. A. B. C. D. indicate the premises intended to be levied on, and which were actually run out and appraised. But the description in the return of the officer is A. B. E. E. The mistake was made by stating the second course from B. as S. 70° E. 109 feet, instead of S. 7° E. 109 feet.</p> <p> </p> <p>contended, that in a case of this nature, where the description of the land levied on was erroneous, the mistake may be proved by parol evidence, and relief granted by a court of equity; and cited the following authorities in support of the position: Peterson v. Grover, 20 Maine, 363; Farley v. Bryant, 32 Maine, 474; Grosvenorv. Titus, 6 Paige, 347; Gillespie v. Moore, 2 Johns. Ch. 595, 600; BeReimer v. BeCantillon, 4 Johns. Ch. 85; 1 Story’s Eq., § § 155-7, 161, 166, and notes; 3 Greenl. Ev. pp. 366-7-8 and notes.</p> <p>The following points were maintained, and authorities cited.</p> <p>The prayer of the bill is two-fold, viz.: — 1st. To enjoin the defendants against claiming or exercising acts of ownership over certain land, alleged to be plaintiff’s, by virtue of a levy.</p> <p>2d. For the Court so to reform the levy under which plaintiff claims, and intermediate deeds, as to cover and include the defendants’ lot, which is not now included.</p> <p>I. Our first proposition is, that the levy is a statute conveyance, and the Court will never reform a deed or levy of real estate, for mistake, so as to enlarge the premises conveyed, unless there is some evidence in writing showing the error and the true intention of the party executing it.</p> <p>This point has been directly adjudicated by this Court in the case of Elder v. Elder, 1 Fairf. 80. The cases, Peterson v. Grover, 20 Maine, 363; Farley v. Bryant, 32 Maine, 474, are not in conflict with it.</p> <p>The principle established in Elder v. Elder, was, after several previous partial applications, fully established in England in the leading case of Woollam v. Hearne, 7 Yes. 211.</p> <p>This whole subject and course of authorities are collated with much care and fullness in 2 White & Tuder’s Leading Cases in Equity, part 1, p. 540, (355,) under the leading case of Woollam v. Hearne.</p> <p>II. The statute prescribes, that the appraisers shall describe the premises set off by them in their certificate by metes and bounds, or so that the same may be distinctly known and identified. In the case at bar, this bas béen done to tbe letter. This is a provision of statute binding upon all Courts of tbe State. Equity bas no power to set it aside. To alter tbe return so as to make it include another lot of land, or to enlarge the premises already described, would be to set tbe statute at naught. Freeman v. Paul, 3 G-reenl. 260; Means v. Osgood, 7 G-reenl. 147; Bannister v. Higginson, 15 Maine, 73; Fairfield v. Paine, 23 Maine, 498; Berry v. Spear, 13 Maine, 187; Pierce v. Strickland, 26 Maine, 277; Thatcher v. Miller, 13 Mass. 271; 10 N. H. 291; Hovey v. Waite, 17 Pick. 196; Emerson v. Upton, 9 Pick. 167; 1 White & Tuder’s Leading Cases in Eq., 191, 192.</p> <p>III. Whatever rights tbe plaintiff might have bad if tbe defendants here were tbe original debtors, yet, as against these defendants, who bad no notice of mistake, if any, be bas no right to tbe reform or amendment prayed for. Fairfield v. Paine, 23 Maine, 498; Haven v. Snow, 14 Pick. 28; Chamberlain v. Thompson, 10 Conn. 254; Stanley v. Perley, 5 Greenl. 369; Emerson v. Littlefield, 3 Eairf. 148; Coffin v. Ray, 1 Met. 212; Sumner v. Rhoads, 14 Conn. 135; Oud v. Brown, 14 Ohio, 285; Stevens v. Batchelder, 28 Maine, 218.</p> <p>IV. A levy is a statute title. Tbe whole proceeding to perfect it is prescribed by statute. In order to make such a title valid, tbe provisions of tbe statute must be strictly pursued. In default of this there is no remedy. Williams v. Brackett, 8 Mass. 240; Piscataqua Bridge Company v. N. H. Bridge Company, 7 N. H. 72; Main v. Kip, 6 Paige, 90; Metcalf v, Gillett, 5 Conn. 400; Hohart v, Fisher, 5 Conn. 592; Qrover v. Howard, 31 Maine, 550.</p> <p>V. Eor tbe defective execution of a power created by contract or devise, tbe Court of Equity may relieve, but tbe case is different with tbe execution of a power created by statute. That must be strictly pursued, and for any omission or variance there is no remedial power in tbe Court to correct tbe error. Thus in Bright v. Boyd, 1 Story, 487; 1 Story’s Eq. Jur. § § 96, 177; Earl of Darlington v. Pulteney, Cowp. 267.</p> <p>YI. There are still other equities in this case, which offer an insuperable obstacle to the plaintiff’s recovery.</p> <p>This is a contest between creditors, and the Court will not discriminate between them. The only law which governs such contest, is that of “ vigilantibus et non dormientibus succurent leges." The law disregards the equity, if the one is as great as that of the other, and if in the race the one out-runs the other, to the victor belong the spoils.</p> <p>The Court will not interfere to give one a precedence over the other. Hunt v. Rousmanier, Ad’x, 1 Pet. 1, 17; Fitzsimmons v. Ogden, 7 Cranch, 2.</p> <p>The weight of authority in this country is in favor of reforming, on parol evidence, in cases within the statute of frauds!. Peterson v. Grover, settled the question in this State. The distinction between cases within and without the statute is fanciful; written evidence, when it exists, is as requisite to prove a contract without, as to prove one within; it is as grave a matter to reform on such evidence in one case as in the other; correcting a mistake in the one is no more violating the statute, than in the other; it is violating the rule of common law, which calls for written evidence.</p> <p>The objection is purely technical, and as such does not apply here, for the statute provides only for contracts, and this is not a case of contract.</p> <p>But we contend there is evidence of the mistake in the return itself, as stated in the opening.</p> <p>This is not a case of deféctive execution of a statute power, (though Story intimates, in notes to the section cited by defendants’ counsel, that in case of mistake, &c., relief may be given,) but a case of a defective return of a perfect execution of a power. If appraisers be not sworn, that is a defect in a levy; if sworn, but that fact is not properly stated in the return, that is not a defect in the levy, but in the return merely.</p> <p>The officer seized the land we claim, caused it to be appraised, set off by metes and bounds, and delivered possession to the creditor. Here was complete execution of a power; a return is not “ doings,” but evidence of “ doings;” title and possession pass to the creditor before the return. The mistake in the return is the officer’s; it is his duty to make the description; it is his in whatever part of the return found. Appraisers merely certify the appraisal of land shown.</p> <p>In reforming a deed, it is a question of intention; for a deed should express the intention of parties. But in amending a return, it is a question of fact, what was actually done. Eor a return should be a true statement of the officer’s doings.</p> <p>Permission to officers to amend is common practice, always granted where truth requires it, and no wrong will be done.</p> <p>The objection to altering after record is no stronger in case of a return than in case of a deed.</p> <p>Jos. R. Lumbert is the party legally interested in this case, for an amendment revives a debt against him; he consents.</p> <p>Hill will suffer no wrong; he will only be deprived of an undue advantage, which he acquired by the mistake; he will stand as well then as if there had been no error.</p> <p>Hill had notice. Of the fact no one can have a doubt. The only question is, is it legally proved ? Coombs’ testimony balances the answer; circumstances turn the scale.</p> <p>He made a thorough examination of Lumbert’s title on record.</p> <p>The description in our return, when applied to the land, shows, not only that there was a mistake, but suggests its nature so far as to put any one on inquiry. A document which showed more would not need amending.</p> <p>The contest is not between two creditors. The plaintiff is a purchaser, innocent, and for a valuable consideration, whose improvements now constitute more than half the value of the premises.</p>

Motion por New Trial. From Nisi Prius, Cutting, J., presiding. This was an action of Assumpsit for supplies furnished Charles Robinson, Anna Robinson, his wife, Jane M., Enoch L., Richard J., and Charles H. Robinson, minor children of Charles and Anna. It was admitted that Charles Robinson had no settlement in this State; that his wife and the four children had their settlement in Hampden; and that the supplies were furnished to the family. Poet.

On Report from Nisi Prius, Cutting, J., presiding. This was an action of Debt on a charter party. The question submitted to the full Court is stated in the opinion.

On Report from Nisi Prius, Cutting, J., presiding. This was an action of Assumpsit on the following contracts: “ Bangor, March 26, 1853. “ Memorandum of agreement between Nathaniel Haynes and Hayward & Co., of Bangor: — “ Said Haynes agrees to sell, and does hereby sell to said Hayward & Co., all the logs cut and hauled into the “ Joe Merry” waters the present lumbering season by J. & E. H. Cowan, and marked NHx. “Said Haynes further agrees to drive said logs to the North…

<p>The primary controling rule, in the exposition of wills, is that the intention of the testator as expressed in his will shall prevail, provided it be consistent with the rules of law.</p> <p>The intention of the testator is to be collected from the whole will taken together, every word receiving its natural and common meaning.</p> <p>A devise of land to another generally or indefinitely, with a power of disposing of it, amounts to a devise in fee.</p> <p>Such a devise, without words of inheritance, is treated as equivalent to a devise with words of inheritance.</p> <p>But when a testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal, the fee does not vest in the legatee.</p> <p>A testator in the first item of his will, “ gave and bequeathed to his wife aH his estate, real and personal, during her natural life,” &e. In the sixth item, he says: — “I will that at the decease of my wife, all my real estate, that may remain unexpended by her, be divided in equal shares between,” &e. — Held, that this being in express terms, a devise for life only, the wife did not take an estate in fee; but the power of disposal being given her by implication in the words “ that may remain unexpended by her,” she could sell the lands at her discretion.</p>

On Report. Prom Nisi Prius. This was an action of the case to recover back the amount of a tax, alleged by the plaintiff to have been illegal, and which was paid by him under duress.

<p>On Exceptions from Nisi Prius, Cutting, J., presiding.</p> <p>This action was Assumpsit upon a note dated July 10, 1854, for one thousand dollars, payable to one Boody, or his order, signed by Paulk & Co., and indorsed by said Boody and the defendant.</p> <p>The defendant pleaded the general issue, and filed a brief statement, alleging that usurious interest was reserved by plaintiffs in the note.</p> <p>To support the action against defendant as indorser of the note, plaintiff introduced the deposition of E. B. Pierce, who testified that, at the time of the discounting of said note, and ever since he was the cashier of said bank, he took said note of Boody by order of the president and directors of said bank, at their bank, and deducted-from the money loaned thereon one per cent, per month, as interest or discount; that on the 22d day of April, 1856, by order of said president and directors, he indorsed on said note the sum of $20,50, being the amount of excess of legal interest taken by said bank for discounting said note.</p> <p>The defendant, to establish the fact of usury on said note, introduced the deposition of Boody, the payee thereof, who swore that he called on the president of said bank, before defendant indorsed said note, and made an arrangement with him to discount the same at one per cent, per month, by procuring the name of defendant; that defendant afterwards indorsed said note, and thereupon it was discounted at one per cent, per month discount.</p> <p>The defendant requested the Court to charge the jury that, if plaintiff took more than legal interest on the discount of said note, this action could not be maintained. The Court refused, and instructed the jury, that the same penalties attached to banking corporations as to individuals on taking greater interest than allowed by law, and that defendant might avail himself of proof of the fact of usury by the bank to avoid the excess of interest taken over six per cent.; but such proof would not otherwise affect the validity of the note.</p> <p>The jury found for plaintiff.</p> <p>To the above instructions of the Court, and refusal to instruct, the defendant excepted.</p> <p>1. The instructions were correct. Banks and other corporations come within the provisions of c. 69 of the Revised Statutes, relating to usury. Such corporations are “ persons” within the meaning and language of the law. R. S., c. 1, § 3, rule 13.</p> <p>2. The plaintiff is entitled to costs. The damages were not reduced by proof, but by voluntary indorsement by plaintiffs on the note; and whether made before or after the action was commenced, is immaterial. Cummings v. Blake, 29 Maine, 105; Hankerson v. Emery, 37 Maine, 16.</p>

Osr Report from Nisi Prius, Cutting, J., presiding. Debt on Award. The plea was the general issue, and a brief statement, alleging a want of publication and demand, and that the award was made ex parte. The only question presented and relied on in this case was, whether certain ex parte proceedings by the referees vacated their award. One Cushing was a witness before the referees, and swore to an account of lumber taken from his books, which were not produced at the trial.

<p>When the charter of a corporation requires notice of the time and place for opening books of subscription to the capital stock to be given under the direction of the persons named in the first section of the Act, a majority of the persons thus named, and less than the whole, may lawfully give such notice.</p> <p>When the corporation has been regularly organized and the proceedings entered of record, the shares subscribed for are recognized as shares of its stock and the subscribers therefor as corporators.</p> <p>The records of the corporation are then competent and sufficient evidence of who gre the corporators, and of the number of shares held by each, unless proof be introduced to destroy their effect.</p> <p>In an action by a railroad corporation to recover assessments, made for the general and legitimate purposes of the corporation, it is not necessary for the plaintiffs to show a compliance with the provision of its charter requiring that the company shall not engage in, nor commence the construction of any section or sections of the road until seventy-five per cent, of the estimated cost thereof shall have been subscribed for by responsible persons.</p> <p>The right to make such assessments cannot be made to depend upon any actual indebtedness existing at the time, nor can it be defeated by any apparent indebtedness incurred under an invalid contract.</p> <p>Prior to the organization of the corporation, the defendant by Ins subscription agreed to become the holder of twenty-five shares in the capital stock, upon the condition that not less than the least sum required by the charter should be subscribed. — Held, that it was not competent for a subscriber to show, that the shares subscribed for and recorded in the books of the corporation were subscribed for by persons of no actual pecuniary responsibility, and reputed not to be responsible for the amount subscribed for by them, with the qualification, however, that the defendant might introduce any testimony tending to show that the subscriptions were not made in good faith.</p> <p>From the nature of the contract of subscription it must have been contemplated that the shareholders or corporators should determine who were apparently responsible as subscribers, and when they did so in good faith, the subscribers to the stock must be regarded as bound by such decision.</p> <p>The declarations of a subscriber, made long after the organization, in relation to his subscription, are not admissible to show that the corporators did not act in good faith in receiving such subscription.</p> <p>If there is not evidence in a ease sufficient to authorize a jury to find the fact upon which a request for instruction is based, the Judge presiding is not bound to give the instruction requested,- whether in itself correct or not.</p> <p>It is immaterial with what motives and under what circumstances the defendant acted in signing a paper calling and in attending a meeting of the directors at which certain assessments were made; and evidence offered upon these points was therefore properly excluded.</p>

<p>On Exceptions from the municipal court of Bangor, Lyon, J., presiding.</p> <p>Assumpsit.</p> <p>The writ originally contained two counts; one for balance of account, being “ for order on E. L. Lovejoy, for forty dollars in bills of Ship Builders’ Bank, of Rockland, delivered you by S. Shepherd;” the other, on a promise by the defendant to pay the plaintiff forty dollars, in consideration of the delivery of an order for certain bank bills, drawn by Hodgman & Carr, express-men, on Lovejoy, their agent. The judge of the municipal court, after issue joined, and while the defendant’s counsel was arguing the cause to the jury, allowed an amendment adding a new count, for the same bank bills sold and delivered.</p> <p>The case was tried at the Dec. term, 1855. It appeared in proof, that the plaintiff, owning a lot of bank bills on a bank in Rockland, had placed them in the hands of Hodgman & Carr of Bangor, express-men, for presentment and collection. Hodgman & Carr gave the plaintiff their receipt for the bills, and sent them to their agent at Rockland for collection. The plaintiff meeting the defendant at Bangor, agreed with him, verbally, to sell him the bills, and the defendant agreed to buy them for forty dollars current money. Thereupon the plaintiff surrendering her receipt procured the order of the express-men on their agent in Rockland for the bills, and delivered it to the defendant, who received it, but who never presented it, nor received the bills or any part of them. The contents of the order did not appear.</p> <p>The defendant requested the Court to instruct the jury, that if the defendant offered to give forty dollars for said bills, but never actually received the bills, or presented the order to obtain them, and made no payment, and gave no memorandum in writing, and gave nothing as earnest money to bind the bargain,- that the mere fact of receiving said order would not be a delivery to him of the bills; and that the defendant would not be holden, because the contract was within the statute of frauds.</p> <p>But the Court ruled otherwise, and stated to the jury, that the giving to the defendant the order, was delivering all the possession plaintiff could give, and was a sufficient constructive delivery of possession, to take the case out of the operation of the statute of frauds.</p> <p>The defendant further asked the Court to instruct the jury, that the damages to be recovered would be the difference between the value of Ship Builders’ Bank bills at the time of contract and forty dollars in current money. The Court, however, instructed the jury, that the damages would be the forty dollars agreed to be paid, and interest from date of writ.</p> <p>1. Exceptions will lie to the allowing of amendments, where it is done, as in this case, as matter of law and not of mere discretion. Rowell v. Small, 30 Maine, 30.</p> <p>2. The action was for bills sold, when it should have been for non-fulfillment of an agreement to buy. It was not a sale, but a contract for sale. As the writ stood, the evidence did not support the counts in the writ. The amendment was for a new cause of action, or the writ cannot stand; if not for a new cause of action, it should not have been allowed without terms. Atkinson v. Bell, 8 B. & C., 277; Ayres v. Sleeper, 7 Met. 45.</p> <p>3. This cause was tried before a jury in the Bangor municipal court, Dec. term, 1855. That court was established in 1855, and abolished in 1856. By the Act abolishing the court, the business of said court was divided, the Supreme Judicial Court had jurisdiction of certain portions of it, and the police Court of certain other portions. It is contended, that this case falls between the two, and that no provision is made for it. At the time the Act of 1856, passed, the action was not pending in said court, nor returnable thereto. If anywhere, the case must go back to the police court. But the police court has no jurisdiction over twenty dollars. The attention of the Court is called to the Acts of 1855 and 1856.</p> <p>4. The contract is within the statute of frauds. “ A contract for the sale of promissory notes is within the statute of frauds.” Baldwin v. Williams, 3 Met. 365. The price was upwards of thirty dollars; the purchaser did not accept any part of the goods; he gave nothing in earnest to bind the bargain; nor did he give any note or memorandum. The order was not given by the defendant but by the plaintiff. There was no real or constructive delivery of the bills, certainly no real delivery, and, under the statute of frauds, a constructive delivery will not answer. R. S., c. 136, § 4.</p> <p>The giving of the order could be no delivery. The agent might refuse to deliver the bills on the order.</p> <p>5. The case finds, that the money was to be.paid for the bills, and not for the order.</p> <p>6. If the order had been given by the plaintiff herself, it could have been but her agreement to deliver; but there must be an agreement on the part of the defendant, (in writing,) to receive.</p> <p>7. The measure of damages was wrong; we have never had the bills; they have not been tendered us. So, the plaintiff still having them, can recover of us only the difference between the sum agreed to be paid, and the value of the bills.</p> <p>1. The amendment was rightly allowed. The witness testified differently from what was expected; his testimony proved the promise to be to pay for the bills, and not the order for them. We were taken by surprise. It is immaterial, at what stage in the trial the amendment was allowed, providing the rights of the defendant were not injuriously affected. It is frequently done after verdict. Cram v. Sherburne, 14 Maine, 48.</p> <p>2. The instructions were correct. The bills were not in the actual possession of the plaintiff. She held a receipt for them. Relying on the promise of defendant, she surrendered this and obtained an order from Carr & Hodgman on their agent for the delivery of the bills to defendant. Nothing but the payment of the price remained to be done. The delivery was complete on the part of the plaintiff, for she was divested of all claim to or control over the bills by the surrender of the receipt and delivery of the order. Defendant received the order, and could have had the bills if he had called for them. This order was like that on the warehouse keeper in Greaves v. Kepke, 2 B. & A., 131; Zwinger v. Samuda, 1 T. R. 67; 2 Kent’s Com. 500; Searle v. Reeves, Roberts on Frauds, 176.</p> <p>3. The instructions asked for on the question of damages were rightfully refused. The request was based upon a supposed executory contract for the sale of the bills, as if they were still in the possession of plaintiff. The proof is, she has completed the delivery, all the delivery it was in.her power to make. She has no possession or control of them.</p>

<p>On Pacts Agreed.</p> <p>This was an action of the case to recover rent for the use of certain premises assigned to the demandant in an action of dower.</p> <p>The time between the verdict and the assignment was about two years.</p> <p>The facts appear in the opinion of the Court. Demand for the intermediate rents was made.</p> <p>The remedies provided for recovery of damages for detention of dower, by the 144th chapter of the B. S., § 5, are similar to those provided for a demandant in a writ of entry c. 145, the different sections of which have been adjudicated upon, in an action for mesne profits, in the case of Larrabee v. Lumbert, 36 Maine, 440.</p> <p>The same reasoning and the same construction applied to the chapter giving remedies to a demandant in dower, will sustain the plaintiff’s claim in the action at bar for mesne profits, after her verdict in dower, and before the assignment of the same, a space of nearly two years.</p> <p>The judgment in the first action was for dower and damages for detention. The verdict was responsive to the declaration, and was for the detention up to the time of the verdict;</p> <p>The general rule of the common law remains to give the plaintiff compensation for the detention of the premises by the defendant for one year and ten months, while her action of dower was under advisement before the Court.</p> <p>This same question arose in Larrabee v. Lumbert, before cited. The writ of dower is as much a writ of possession, on proof of title, as a writ of entry.</p> <p>The refusal of the Chief Justice, to whom the question was referred, to allow any thing more than the verdict and interest, was right. The plaintiff now having exhausted her remedy under the statute, claims for the indemnity under the rules of the common law.</p> <p>In Perry v. Goodwin, 6 Mass. 498, the damages for detention of dower were assessed from the time of demand to the time of the verdict, precisely as in the case between these parties, and there seems to be no provision for any other mode of assessment.</p> <p>Can the action be maintained for rents and profits for the time between the verdict and assignment of dower ?</p> <p>1. Assumpsit will not lie in this case, for there was no express or implied promise. Wyman v. Hook, 2 Greenl. 337.</p> <p>2. Plaintiff had no right to oceupy till dower ivas assigned. All the interest she had prior to assignment was a mere chose in action. Bolster v. Cushman, 34 Maine, 428; Johnson v. Shields, 32 Maine, 424, 427.</p> <p>To maintain trespass for mesne profits, there must be a right of entry, if not an actual entry. 9 Mass. 556; Emerson v. Thompson, 2 Pick. 473.</p> <p>3. All the damages plaintiff is entitled to recover is provided for by R. S., c. 144, § 7. That statute does not apply to a case of this kind. The plaintiff has exhausted her remedy. If the law now furnishes her no remedy, the Legislature must provide one. The Court cannot do it.</p>

On Exceptions from Nisi Prius, Hathaway, J., presiding. This was an indictment under the Revised Statutes of 1840, c. 25, § 89, for a defective bridge, whereby one Earnest Klatz was drowned. The plea was not guilty. The jury returned a verdict of guilty. Whereupon the Judge presiding assessed the damages in the sum of one thousand dollars.

On Demurrer from Nisi Prius, Appleton, J., presiding. This was Scire Facias on a recognizance. The defendant moved to quash the writ, on the grounds stated in the opinion of the Court. The motion was overruled, reserving the legal rights of the defendant. Thereupon a demurrer was filed, and a joinder on demurrer. If the motion and demurrer be overruled, the cause is to stand for trial. 1.

<p>On Facts Agreed.</p> <p>This was an action of covenant on the bond of a collector of taxes. The facts in the case appear in the opinion of the Court.</p>

On Facts Agreed. This was an action of trespass quare clausum, to recover for damages done by the defendants, in entering upon, and taking the income of certain real estate, the rents and profits of which had been set off to the plaintiff on execution. It will be seen, by the opinion of the Court, that the right of the plaintiff to recover turned upon the question of the validity of the levy. contended that the levy was fatally defective.

On Beport from Nisi Frius, Mat, J., presiding. This was an action of Assumpsit. The writ was dated August 26, 1839, and contained one count on a note alleged to have been given to the plaintiff by defendant, at Hope, on the 5th day of March, 1838, and payable to him, or order, for twenty-three dollars and twenty-five cents, in sixty days, and interest.

On Exceptions and Motion for New Trial. Prom Nisi Prius, Appleton, «L, presiding. This was an action of tbe case against the defendant town, to recover supplies furnished one Barzilla Dorr, a pauper, whose settlement was alleged to be in Gardiner. The plaintiffs introduced the deposition of the pauper referred to.

On Report from Nisi Prius, Cutting, J., presiding. This was an action of the case for using the waters of the Piscataquis river to the prejudice of the plaintiff and for diverting the same.

<p>On Report from Nisi Prius, Appleton, J., presiding.</p> <p>The facts of the case appear in the opinion of the Court.</p> <p>The evidence shows only a verbal promise of the defendants to pay the debt of another. It therefore comes within the statute of frauds, and the action cannot be maintained.</p>

On Report from Nisi Prius, Cutting, J., presiding. Assumpsit on account annexed, and for money had and received. The evidence being out, the case by consent of parties was taken from the jury and agreed to be submitted to the Law Court, to enter such judgment and for such sum, if for plaintiff, as they shall deem to be agreeable to law, having authority to draw such conclusions as a jury would be authorized to draw.

<p>A statute title is not perfect, unless every thing has been done which the statute requires.</p> <p>A title cannot be acquired by a location of a lot reserved for public uses, under the R. S., c. 122, § i, unless the return of the committee, after having been accepted by the Court, is recorded in the Registry of Deeds within six months.</p>

On Exceptions from Nisi Prius, Hathaway, J., presiding. This was a Petition for Review, which having been denied by the presiding Judge, the case came up on exception. The points involved are stated by the Court.

On Report from Nisi Prius, Appleton, J., presiding. This was an action of Assumpsit on a draft drawn in California, on a house in Boston, payable to the order of defendant’s wife, which she indorsed in her own name and transferred to the plaintiffs for a valuable consideration. The draft was protested for non-payment.

<p>A. haying agreed in a settlement with B. for stumpage, that he would “ account to or allow” B. “ any and all deductions” which A. might obtain from, the State on account of the stumpage, B. haying first to “ pay or allow” A. “ all his expenses, costs and trouble” in obtaining them; — Held, that as the deductions had to be effected through the agency of A., who would thus know when they were made and to what amount, he was bound to account to or allow B. the amount of the same, less his reasonable expenses, costs and trouble in obtaining them. —</p> <p>Held also, that A. haying by a transfer of the judgment which he held against B. put it out of his power to “ allow” the amount thereon as contemplated when the agreement was made, he was bound to “ account” to him for the same.—</p> <p>Held also, that a reasonable .time haying elapsed after the deductions were made, B. could maintain his action against A. for the amount due him, without any previous demand on A. —</p> <p>Held also, that B. was entitled to interest on the balance due him from the time when the deductions were made.</p> <p>It seems, that the true principle, upon which to base the allowance of interest in the absence of express stipulation, is to charge it upon the party who is in fault.</p> <p>To enable a plaintiff to recover in an action of assumpsit on the money counts, it is not always necessary to show that the money has actually been received by the defendant. If any thing - has been received by defendant as payment in lieu of money, as negotiable promissory notes, specific chattels, and even real estate, it equally entitles the plaintiff to recover.</p>

On Eeport from Nisi Prius, Cutting, J., presiding. This was an action of Assumpsit for a portion of the earnings of a brig. The plaintiffs produced in evidence of their title, a copy of the register of the vessel. The particulars of the case fully appear in the opinion of the Court.

On Motion for New Trial. From Nisi Prius, May, J., presiding. This was an action, in a plea of land, in which the plaintiffs demanded, in right of Mrs. Hill, one of the plaintiffs, a certain lot of land. The declaration alleged seizin in Mrs. Hill within twenty years, and a disseizin by the tenant, and also contained a claim for the rents and profits for six years. The general issue was pleaded, and the following specifications of the grounds of defence were filed:— 1.

On Exceptions from Nisi Prius, Appleton, J., presiding. This was an action of Assumpsit upon a contract. The writ, dated December 14, 1854. Plea, the general issue. Specifications of defence were waived by plaintiff. The contract was stated by George W. Wakefield, a witness called by plaintiff, to be as follows: — “ Morey was to furnish the machinery and iron works for the mills which the plaintiff was about erecting in Cherryfield, a schedule of which articles was given him.

On Agreed Statement of Facts. From Nisi Prius, Cutting, J., presiding. This was an action of Assumpsit on two promissory notes, executed by the defendant, at St. John, N. B., Nov. 20,1848. The plea was the general issue, with a brief statement setting forth the discharge of the defendant in bankruptcy, under the bankrupt laws of New Brunswick. It was admitted that the defendant resided at St. John, N. B., at the date of the notes.

On Exceptions from Nisi Prius, Appleton, J., presiding. This was an action of Assumpsit to recover a sum of money, alleged by the plaintiffs to have been paid by them to the town of Rockland, for the support and relief of the defendant as a pauper. The general issue was pleaded and joined. To make out the case, on the part of the plaintiffs, they offered the deposition of one Elkanah S. Smith, taken in Rockland; but the adverse party was not present.

On Exceptions from Nisi Prim, Shepley, C. J., presiding. This was an action of trespass, quare clausum. Plea, general issue and brief statement. The verdict was for the plaintiff. The defendants filed exceptions to certain rulings and instructions of the presiding Justice, which are sufficiently stated in the opinion of the Court. 1.

This was a petition of the inhabitants of the town of Scarborough for a writ of certiorari, ordering the Court of County Commissioners for the county of Cumberland, to certify their records for the inspection of this Court, to the end that so much thereof as is illegal and erroneous may be quashed. The petition alleged several errors. 1. County Commissioners can only have jurisdiction in a particular case, by the existence of those preliminary facts which confer it upon them.