Volume 42 — Maine Reports

<p>A ferry is a liberty to have a boat upon a river for the carriage of men and horses for a reasonable toll. Its limits are high water mark upon either shore.</p> <p>It necessarily requires such privileges as will make it effectual. Passengers may be received and landed at the margin of the water upon the shore, at all times of tide and in all states of the river.</p> <p>When the space between high and low water is in part or wholly bare, passengers may pass over the shore without hindrance, and without liability for damages to the riparian proprietor.</p> <p>A reservation in a deed sometimes has the force of an exception, and these terms are frequently used indiscriminately. A saving or exception is always a part of the thing granted and in being; a reservation is of a thing not in being, but is newly created out of lands and tenements devised.</p> <p>"When land is granted, and a right of way reserved, that right of way becomes, in a legal sense, a new thing, separated from the right of the grantee in the land.</p> <p>A way had been laid out, and used by the public for nearly twenty years, across the land of A., when he conveyed it to B. After the description in his deed, he used the following language: —reserving to the public the use of the way laid across the same from the county road to the river”: — Held, that this saving clause applied to “ the way” then in existence, and should he treated as an exception.</p> <p>Public ways may have a legal existence by dedication, not only to a corporate body capable of taking by grant, but also to the general public, and limited only by the wants of the community. If accepted and used in the manner intended, the owner and all claiming in his right are precluded from asserting ownership inconsistent with such use.</p> <p>The right of the public in such case does not rest upon a grant by deed, nor upon twenty years’ possession, but upon the use of the land with the assent of the owner, for such length of time that the public accommodation and private rights might he materially prejudiced by an interruption of the enjoyment.</p> <p>To constitute a way by dedication, two things are necessary, the act of dedication, and the acceptance of it by the public.</p> <p>But it does not follow, because of the dedication of a public way by the owner of the soil and the use of it by the public, that the town, or other public corporation, is bound to keep it in repair. In order to this, it seems that there should he proof of acquiescence or adoption by the corporation itself.</p> <p>In this State, if a county, town or plantation, against which a suit is brought, or an indictment found, has, at any time within six years before the injury for which damages are sought, made repairs on the road alleged to be defective, it is not competent for such county, town or plantation to deny the location of such road.</p> <p>By virtue of the proviso contained in the Colonial ordinance of 1641, persons, had a right to use the shore of the Penobscot river, including the right of mooring thenvessels thereon and of discharging and taking in their cargoes.</p> <p>The establishment of a ferry on that river in 1798, by the Court of Sessions, was neither an enlargement nor a restriction of that right.</p> <p>The use of the shore, as a way for travel, is the exercise of a right which the owner of the shore cannot abridge or restrict. When the river is covered with ice his rights and those of the public remain unchanged. Citizens may still traverse the river at pleasure.</p> <p>The use of a way by the public, the right to which is fully supplied by law, raises no presumption of dedication. The owner, by silence, assents to its use, only as in any other case where he sees citizens exercising privileges which are clearly their own.</p> <p>It is a well settled principle that highways may have a legal existence from immemorial usage.</p> <p>Bong occupation and enjoyment of a way, unexplained, will raise a presumption of a grant, not only of the easement, but of the land itself; and not only of a grant, but of acts of legislation and matters of record.</p> <p>But such presumption is predicated on the existence of some right or title which is the subject of the grant. No one is presumed to hare granted to the public a right, when it is by law in the public to the fullest extent.</p> <p>By the change of the common law of this State from what was the common law of England, in regard to the rights of the proprietor of lands adjoining-flats upon or about tide waters, it must be presumed that some benefit was designed to such owner. It has never been held that he is precluded from erecting wharves and piers on his own flats, thus preventing the passage of vessels over flats covered by such erections, provided ho did not thereby materially interrupt general navigation.</p> <p>By the erection of such permanent structures as he may thus lawfully place upon his own premises, he acquires no exclusive right to those portions remaining open. The public have still, in common with him, the right to use the open space, provided they do not interfere with his erections.</p> <p>A public way cannot be laid out across a navigable stream, or extending further than to high water mark, except by authority from the Legislature.</p> <p>A landing, though for the purpose of direct transit, is more than a highway. In the latter ease, the owner of the soil, subject to the right of mere passage, is still absolute master.</p> <p>The public have no right to use and occupy the soil of an individual adjoining navigable waters, as a public landing and place of deposit for property in its transit, against the will of the owner, although such user has been continued for more than twenty years.</p> <p>Such user affords no foundation for the presumption of a grant, nor evidence of a dedication. Prescription will give no right to the exclusive occupation of another’s land, for such purpose, as it may give the traveler the right to pass over it without the power of halting thereon; and any such use of it amounting to an invasion of the rights of the proprietor, would be similar to a trespass upon upland, and the remedy would be the same.</p>

On Exceptions from Nisi Prius, Hathaway, J., presiding. This was an action of assumpsit on account annexed and for money had and received. The general issue and the statute of limitations were pleaded. A part of the testimony introduced by the plaintiff was the deposition of William B. Smith, touching the contents of a certain paper alleged to have been lost.

Bill in Equity. This was a bill praying for relief and for an injunction, to which a general demurrer was pleaded. The cause was heard upon bill and demurrer. All the material facts appear in the opinion of the Court. A complete waiver of a written contract may be made by parol. Woolam v. Ham, 2 White & Tudor’s Leading Cases, 553, and cases cited. There can be no doubt of this in equity, even though there may be in law.

On Report from Nisi Prius, Hathaway, J., presiding. Assumpsit, on a note for $19,69, given Feb. 23, 1849, on demand and interest, and signed A. G. Brown & Co. When the action came on for trial, at the October term, 1854, Brown was defaulted, and the plaintiff’s attorney offered to enter neither party as to Babcock, the other defendant, or to discontinue as to him without costs. This offer was declined, the defendant pleaded he never promised with Brown, and issue was joined.

<p>When jurors have had opportunity to examine for themselves in regard to matters testified to by witnesses produced before them, their verdict will not be disturbed by the Court, on a motion for a new trial, because it differs in some respects from the testimony given in the case.</p> <p>When evidence legally inadmissible is introduced without objection, it must be understood to be in the case by consent. Each party may then insist on its being considered by the jury in making up their verdict; and instructions by the Court to that effect afford no legal ground of exception.</p> <p>When a party has recovered, in an action of assumpsit without objection, his damages for the tortious doings of another, he cannot, in trespass, recover damages for the same cause on the ground that the previous proceeding was illegal.</p> <p>A refusal of the Court in such action of trespass, to instruct the jury that it was not competent for the plaintiff to have recovered in the action of assumpsit for the articles declared for in the present suit, was not erroneous, although it might have been a proper instruction in the action of assumpsit.</p> <p>The whole question in regard to the articles alleged to have been tortiously taken, having been presented, without objection, to the jury in the action of assumpsit, and passed upon by them, it became res adjudicata so far as a verdict could make it so.</p>

On Report from Nisi Prius, Hathaway, J., presiding. Replevin, for a mare. Defendant pleaded the general issue, with a brief statement of a special property in the mare for feeding, keeping, doctoring and curing her, for the space of thirty days. The plaintiff owned the mare and kept a livery stable in Bangor.

On Exceptions from Nisi Prius, Cutting, J., presiding. This was an action of Assumpsit. The defendant filed an offer to be defaulted, at the first term, which offer was accepted by plaintiff at the second term, and a default entered accordingly. The defendant then moved for his costs, from the date of his offer to the time the default was entered, which motion the Court overruled.

On Exceptions from Nisi Prius, Cutting, J., presiding. This was an action of the case brought by the female plaintiff before her marriage, under the name of Nancy E. Temple, alleging that, on the fourth day of May, 1854, she was the owner of a strip of land situated in Oldtown, on the east side of Marshe’s Island, containing twenty-five acres; that the defendant was her agent authorized to sell said land; that she resided in Boston, and was ignorant of its value; that the…

<p>On Execptions from Nisi Frius, Cutting, J., presiding.</p> <p>This was an action of Assumpsit upon an alleged promissory note payable to bearer and witnessed.</p> <p>The subscribing witness testified that the note was written and signed by the wife of the defendant; that the defendant was not present, and that the note was delivered by her to one William II. Snell; that Snell came to defendant’s house in his absence with a note similar in amount, which the defendant had previously given to said Snell, payable to one Ellis, and induced her to sign her husband’s name to the note in suit and give it in exchange for the one brought by Snell.</p> <p>The plaintiff then called William H. Snell as a witness to prove that he sold the note to the plaintiff as his own property, and without telling the plaintiff that defendant’s wife gave the note.</p> <p>The Court excluded the witness. The plaintiff gave him a release, and he was then examined.</p> <p>The defendant objected to the witness’ stating to the jury the conversation that took place between him and defendant’s wife at the time she gave the note; he did not object to proof of the acts done at the time. The Court overruled the objection and allowed the witness to detail fully the conversation that took place between the witness and the defendant’s wife.</p> <p>Snell also testified that he sold the note to the plaintiff the day he received it from the defendant’s wife, without telling him that the wife gave the note; and he testified that he was authorized to dispose of it; that about ten days after, he met defendant alone in a swamp forty or fifty rods from any person or house, informed him what he and defendant’s wife had done, and that defendant replied, “It was all right; he should have done just so if he had been at home.” He also testified that he had no authority from the plaintiff to procure a ratification of said note.</p> <p>The defendant introduced evidence to show that the witness, soon after the transaction, had given an account of the meeting with the defendant widely different from that testified to by him at the trial; and also to impeach the general character of the witness for truth. He also relied upon the position of the witness in the matter as affecting his credibility.</p> <p>He also offered to prove for the purpose of showing the improbability of any such ratification as that testified to by the witness, that the witness Snell, a short time previous to the giving of the note by the wife, sold the defendant a horse for which he paid him forty-five dollars; that he warranted the horse to be sound and kind and not exceeding twelve years old, and agreed at the same time that if the horse was not what he warranted him to be, he would take him back and furnish another satisfactory to the defendant; that the horse proved to be twenty-two years old, was unable to eat hay, was unsound and worthless, and that Snell was therefore called upon by defendant to make good his warranty; that he took back this horse and brought the defendant another horse which he said was just such a horse as defendant wanted for his family’s use, and he warranted the horse to be sound, kind, and worth seventy-five dollars; that the defendant, relying upon his representations, was induced to give him the thirty dollar note spoken of in the testimony of the subscribing witness to the note in suit, in addition to the forty-five dollars already paid him, all of which was the price agreed upon for the last horse; that it was agreed at the time and as part of the trade that if this horse did not prove to be what Snell warrranted him to be, the note was to be given up to the defendant and to be void; that within four days after he received the last horse and several days prior to the time when Snell testified ho met the defendant in the swamp, as before stated, the defendant ascertained that the last horse was very different from what he was warranted to be by Snell, was unsound, unfit and unsafe for his family’s use, and had the heaves badly, and was not in fact worth over twenty dollars. This evidence the Court excluded, and the jury returned a verdict for the plaintiff.</p> <p>1. The witness was allowed to detail fully, against the defendant’s objection, the whole conversation between himself and defendant’s wife, though defendant was not present; this evidence was hearsay of the broadest kind. His reasons and the wife’s replies, were entirely inadmissible. 1 Greenl. Ev. 124. They were no part of the res gestee, because neither the witness nor defendant’s wife was authorized to act for him. O’Kelley v. O'Kelley, 8 Met. 440; Wright v. Deklyne, 1 Peters’ C. C. R. 203.</p> <p>2. The ratification attempted to be proved was not made to the plaintiff', or any person by him authorized to receive it. There was no assent of the two minds, necessary to the contract. Whitney v. Bigelow, 4 Pick. 113.</p> <p>3. The defendant offered to prove, for the purpose of showing the improbability of ratification, certain facts, which, if admissible, would have convinced any person of the improbability of such ratification. The evidence offered related to the execution itself of the note, and therefore was admissible, though the plaintiff was indorsee. Testimony cannot be excluded which would have a tendency, however remote, to establish the probability or improbability of the fact in controversy. Trull v. True, 33 Maine, 361.</p> <p>1. The conversation accompanying the act of giving the note, was clearly admissible as part of the res gestee.</p> <p>2. The testimony as to the consideration of the note, was offered to impeach the witness, and for no other reason. Eor such purpose, it could not be received. 1 Greenl. Ev. 52; Robinson v. Heard, 15 Maine, 296; Scott v. Hall, 16 Maine, 326.</p>

<p>A complaint for flowage, under R. S. of 1841, c. 126, § 6, must contain such, a description of the land alleged to be overflowed, and such a statement of the damages caused thereby, as will exhibit in the record with sufficient certainty the matters determined in the suit.</p> <p>In such complaint, it is not necessary to allege that the lands were overflowed by reason of the head of water made necessary for the mills of the respondents.</p> <p>Nor is it required to allege that the respondents built their dams and mills upon their own land, or upon the land of another with his consent.</p> <p>The respondent may, by R. S., c. 126, § 9, plead to the complaint, that the complainant has no right or estate in the lands alleged to be flowed; that the respondent has a right to maintain the dam complained of for an agreed price or without compensation; or any other matter which may show that the complainant cannot maintain his suit; but ho cannot plead in bar that the land is not injured by the dam.</p> <p>The only ground of complaint under the statute is, that the complainant has sustained damage in his lands by their being overflowed by a mill-dam.</p> <p>The issue, whether he has suffered such injury or not, must first be made before the commissioners appointed by the Court. Their report may be impeached; and then this question, with others, if such exist in the ease, may be regularly presented to a jury for decision.</p> <p>The issue presented by a plea in bar, that the lands were not overflowed by reason of the head of water raised by the dam, is virtually the issue, whether the complainant has or has not suffered injury; and must be presented to the commissioners before it can be submitted to a jury.</p> <p>A prescriptive right to flow lands cannot be acquired, unless it appear that the owner of the lands has suffered injury or sustained damage by the flowing ; and such injury or damage must be proved.</p> <p>A plea by respondents, that they had flowed the lands more than twenty years prior to complaint, doing the same damage, if any, as during the period covered by the complaint, is peculiar, and embraces an issue to be tried by the commissioners and not by the jury in the first instance.</p> <p>The complaint, in this case, meets every requirement of the statute, and is sufficient.</p>

<p>In the interpretation of wills the great object of courts is to give full effect to the intention of the testator. But a will, to be effectual, must be executed in conformity with the requirements of the statute.</p> <p>To give effect to an interlineation made by the testator, without a new attestation, would be to disregard the statute requirement. On the other hand, to hold the whole will void for that cause, would be to defeat the intention of the testator. Such interlineations are therefore disregarded, and the will approved according to the original draft, as if nothing had been done to it.</p> <p>Interlineations, made by a stranger, when the original legacy is known, will likewise have no effect, and the will will be approved as it originally stood.</p> <p>Interlineations, made by the legatee himself, will at most only avoid the legacy so altered. The other bequests will not be destroyed thereby.</p>

<p>A general Ken, at common law', is the right to retain the property of another, to secure a general balance of accounts.</p> <p>A particular lien is a right to retain the property of another, only for a charge on account of labor employed or expenses bestowed upon the identical property detained.</p> <p>The lien provided in the Revised Statutes, c. 125, § 35, is not a general lien, but the same as a particular lien at common law'.</p> <p>Materials, sold by one party to another, under the representation that they would be wrought into a vessel, which the latter contemplated building, or which was in process of construction by him, but which were not so used, would not create a lien on such vessel.</p> <p>If, however, such materials were incorporated into a vessel other than that designated, the lien would attach to the vessel on which they were in fact used.</p> <p>A. sold a quantity of iron to B. A portion was incorporated in a vessel, and the balance was appropriated to other purposes. A. afterwards recovered judgment for the whole of the iron: — Held, that this was a waiver of the lien, as the value of the iron not used about the vessel was merged in the judgment, and could not be separated from the other portion.</p> <p>The law requires no useless ceremony. An officer is not liable, as for an omission of duty, for neglect to deliver an article which had been attached in the suit but which could not legally be sold on the execution.</p>

<p>An award may be good in part, and bad in part; and the part which is good will be sustained if it can be so disconnected from the remainder, that no injustice will be done.</p> <p>An award decided that A. was entitled to the “ crops raised on said B’s place” the last season, and that he was to have the “ privilege” of taking them off: Held, that this referred to annual crops, and that A. was entitled to a reasonable time within the year, in which to remove them.</p>

On Report from Nisi Prim, Hathaway, J., presiding. This was an action for malicious prosecution. Plea, the general issue, with brief statement. The alleged malicious prosecution, was a suit commenced by the defendant against the plaintiff in this case, and others, for trespass, which was settled at a subsequent term of the Court, as appears by the agreement signed by O. J. Abbott and E. W. Hinckley, attorneys for the parties.

This was an action of the Case for an injury to plaintiff’s horse alleged to have been caused by a defect in the highway in the town of Penobscot. Plea, the general issue.

On Facts Agreed from Nisi Prius. This was an action of assumpsit brought upon a contract.

On Report from Nisi Prius, May, J., presiding. This was' an action of assumpsit for money had and received.

On Facts Agreed. Assumpsit on two promissory notes. The cause was submitted to the full Court upon the following agreed facts. Held: and if Ms term has expired when discharged, and shall exhibit the warrants of commitment and discharge; and the jailer shall credit all moneys and effects received or to be received of the prisoner or of other persons on his account; and the Court, on due examination into the nature of the accounts and the ability of the prisoner to…

Bill in Equity. The cause was heard upon bill, answer and proof. The prayer of the bill was, that the respondents might be restrained by a decree of the Court from making wider and deeper the channels through which certain mills upon the Machias river were supplied with water. The facts in the case, are fully stated in the opinion of the Court. By the R. S., c. 96, § 10, general chancery powers are conferred so as to embrace the whole field of chancery jurisdiction.

<p>A. mortgaged to B. “ all and singular the shipbuilding materials now in my shipyard in Calais, consisting of timber of various descriptions, and iron and tools of various kinds.” This mortgage was dated 29th November, 1854, but was by mistake recorded as a mortgage dated 29th March, 1854. A. on the 16th day of July, 1855, conveyed a vessel built in his yard of some of the above materials, by bill of sale to C. On the 18th day of said July, B. attached the schooner as the property of A., and claimed possession under the mortgage and by a claim of lien for materials furnished : —</p> <p>Sold, that if the mortgage, properly recorded, would have been valid to encumber or defeat C.’s title, the mistake rendered it ineffectual for that purpose.</p> <p>Sold, that, as the writs, by virtue of attachments on which B. claimed to hold the vessel, only commanded the officer “to attach the goods and estate of” A., and as the declarations in them set forth no claim in rem against the vessel then sold to and in the possession of C., those precepts gave the officer no authority to take the vessel from C.’s possession.</p>

<p>Foreign attachment, or the trustee process, is regarded as a species of equitable action.</p> <p>The Court may, in its discretion, allow a person summoned as trustee, to withdraw a bill of exceptions, filed by him at a previous term, to the ruling of the Court adjudging him trustee on his disclosure, and may then give him leave to disclose further.</p> <p>"Whether a supposed trustee, after having completed and filed his disclosure, shall have leave to disclose further, is a question addressed to the legal discretion of the Court, upon the facts and circumstances of the case.</p> <p>A supposed trustee disclosed that, having become liable for the principal defendant to a large amount, he took as security therefor, a mortgage of his house, and an absolute conveyance of his store, giving back a memorandum to reconvey upon being indemnified: — Hold, that he was not trustee.</p> <p>The question whether the conveyances disclosed by the trustee, are void for any cause, cannot be considered or determined upon exceptions to the judgment of the Court upon the disclosure.</p> <p>A person cannot be held as trustee for goods of the principal defendant mortgaged to him, of which he has not actual, but only constructive possession.</p> <p>If the plaintiff wishes to avail himself of the goods of the defendant mortgaged to the supposed trustee, he must apply to the Court for an “order and decree” in accordance with R. S. (1841,) c. 119, § 58. These provisions are not applicable, however, to such goods as have been in the possession of the trustee and have been sold by him.</p> <p>If he neglect to procure and comply with such order he has no right to claim that the mortgaged property shall be exposed to the officer having the execution issued in the case.</p> <p>A. conveyed a vessel to B. by bill of sale, upon an agreement that B. should appropriate the proceeds of the vessel to the discharge of A.'s debts for which B. was surety: — Held, that this agreement was a sufficient consideration for the conveyance.</p> <p>The sale being without fraudulent intent and valid between the parties, the fact that some of the parties may have incurred penal liabilities for infractions of the revenue laws cannot have the effect to charge the trustee.</p> <p>It seems that even if the conveyance were fraudulent in fact, the trustee might hold the property to secure his bona fide liabilities.</p> <p>In determining the liability of a trustee, the facts disclosed by him are to be taken as true.</p> <p>A mortgagee may permit his mortgager to use or dispose of the mortgaged property, until the rights of third parties intervene. .</p> <p>If, after a person has been summoned as trustee, he permit property of the principal defendant in his possession to be disposed of, ho must account therefor.</p> <p>A trustee is entitled to deduct from the property in his hands, or the proceeds thereof, all sums -which he had paid for the principal defendant; and to hold the balance as security for all his outstanding liabilities on defendant’s account, and for all his demands against him of which he could avail himself, had he not been summoned as trustee. He is to be charged only for the balance after their mutual demands are adjusted.</p> <p>When a plaintiff alleges, in pursuance of the R. S. of 1841, c. 119, § 33, “ any other facts than those not stated nor denied by the supposed trustee,” the allegations must be clear and distinct, setting forth the “ other facts” to be proved. A mere allegation that a certain sale by the principal debtor to the trustee was fraudulent or without consideration, when the trustee in his disclosure has stated the circumstances and the consideration, and when no “facts” to be proved by the plaintiff' are disclosed, is insufficient.</p>

<p>On Report from Nisi Prius, Hathaway, J., presiding.</p> <p>This was an action of Assumpsit, brought by the plaintiff as deputy sheriff, upon a receipt given to him by the defendants for a vessel which he had attached in a certain suit, Thomas Sawyer v. Michael Me Cur day. The facts sufficiently appear in the opinion of the Court.</p> <p>The defendants, in their specifications of defence, denied “any liabilities on account of the receipt sued in this action, because the plaintiff, acting as deputy sheriff, in the service of the writ in the case Thomas Sawyer v. Michael McCurday, made no legal attachment of the property; because the property purported to be attached in said action, and for which the receipt sued in this case was given, was not the property of the,defendant Michael McCurday, or liable to be attached on the debt of the plaintiff Thomas Sawyer, but was the property of Wm. Pike.” These specifications were filed under the law of 1855.</p> <p>The plaintiff read the writ in the action, Sawyer v. McCurday and William Pike, trustee, based upon the following account annexed: —</p> <p>“1854, Aug. 5.</p> <p>Michael McCurday to Thomas Sawyer, Dr.</p> <p>To 12,442 ft. pine deck plank, at 25, $311 10</p> <p>“ hauling same to planing shop, 12 44</p> <p>Cash. $323 54.”</p> <p>The direction upon the writ was, “Mr. Officer, attach vessel to enforce plaintiff’s lien for the within claim.” The officer’s return states, among other things, that he attached a vessel on the stocks, being built by said defendant, by order of the plaintiff’s attorney, as the property of the defendant within named, to enforce lien for the within claim, and by direction of the plaintiff took William Pike and Levi L. Lowell as receiptors for the safe return and forthcoming of said property, &c., and on same day served process on defendant.</p> <p>The plaintiff put into the case the judgment in the case of Sawyer v. McCurday & Trustee, and the execution issued thereon.</p> <p>The officer’s return upon the said execution, stated that he had that day notified the trustee, who had neglected and refused, &e.; and on same day notified the defendants in this action, and made a demand upon them for the property attached on the original writ, for which they had given the receipt, and that each of them refused and neglected to deliver the same, &c.</p> <p>The defendants offered, and were allowed by the Court to read, subject to the objection of the plaintiff, a mortgage from McCurday & Harvell to William Pike, dated May 17, 1854, being prior to the commencement of the original suit, of a ship to be built by McCurday & Harvell. The condition of the mortgage was to pay advances and indebtedness according to a contract between the parties made Dec. 17, 1853. McCurday & Harvell to have possession unless they abandon. It was admitted that this mortgage was duly executed and properly recorded, and that the ship mentioned in it is the one referred to in the various depositions in this case.</p> <p>Wm. Pike, one of the defendants, was defaulted at the opening of the trial.</p> <p>If, upon the above stated facts, the Court be of opinion that the plaintiff’s action can be maintained, then the defendant is to be defaulted; otherwise, a nonsuit is to be entered.</p> <p>1. The defendant Pike having been defaulted, we have only to consider the liability of Levi L. Lowell, the other defendant.</p> <p>Lowell is liable, because he signed the receipt, and there has been a breach of that contract.</p> <p>Prom the case, it would appear that Lowell defends upon the ground, that in the action of Sawyer v. McCurday and William Dike, trustee, the attachment of the ship receipted for was insufficient in form or invalid, because the ship was not the property of McCurday, but was the property of William Pike.</p> <p>2. As to the form of the attachment.</p> <p>The case finds, that in the attachment, all the forms of the statute were complied with; and it is submitted, that if this were not so, this defence could not be made by Lowell, as it could not have been made by the attaching officer, if the action had been against him, for not holding the ship to be taken on execution. Haynes v. Small, 22 Maine, 14.</p> <p>3. The receipter takes the place of the officer, and. has the same rights and is subject to the same liabilities. Sawyer v. Mason, 19 Maine, 49.</p> <p>4. As to the property of McCurday in the ship.</p> <p>Admitting, for the argument, that the mortgage of McCurday and Harvell to William Pike, was valid and subsisting at the date of the attachment, Sept. 15, 1854, then, by the provisions of the statute, McCurday had property in the ship, which was attached in that suit, where Pike was summoned as the trustee of McCurday.</p> <p>It is however denied, that the mortgage to Pike was valid and subsisting at the date of the attachment, and it is submitted that, the case finding that the officer, having attached the ship in the possession of McCurday, the presumption of law is, that the ship was the property of McCurday, and the burthen of proof is upon Lowell to show affirmatively, that the property was not McCurday’s. Bradford v. McLellan, 23 Maine, 302.</p> <p>5. The case finds that the ship was mortgaged to William Pike by McCurday & Harvell, May 17, 1854, and was “to be built.” The officer’s return shows that Sept. 15, 1854, the ship was built by McCurday, and on the stocks.</p> <p>It is submitted, that a mortgage of a ship before she is built, gives no rights as against Sawyer, and, so far as he was concerned, the ship was McCurday’s.</p> <p>The case does not find that Pike ever made any advances under the mortgage, or that there was any indebtedness to him, at the date of the attachment, from McCurday & Harvell, or either of them; and, so far as Sawyer is concerned, the case does not find that the mortgage was valid and subsisting at that time.</p> <p>It is submitted, that by the principle decided in Bradford v. McLellan, 23 Maine, 302, Lowell must show the ownership of the ship to have been, Sept. 15, 1854, in Pike, or not in McCurday; and if in Pike, then by Fisher v. Bartlett, 8 Maine, 122, that the ship has been restored to Pike. Lathrop v. Cook, 14 Maine, 414.</p> <p>1. The receipt in this case is peculiar. It does not allege the property attached to be McOurday’s. It states purposely that the ship attached was “ now being built in the shipyard of the defendant, Michael McOurday;” and was attached on a precept in favor of Sawyer against McOurday. It purposely avoids stating the ship to be McOurday’s property. Neither of the defendants having acknowledged the property to be McCurday’s, is precluded from setting up property in himself or another. In this particular, it is similar to the receipt in Lathrop v. Cook, 14 Maine, 416, of which Judge Sheplet says, “the defendant has not, by virtue of the receipt, dis-enabled himself to allege and prove it to have been his own property.”</p> <p>2. The mortgage being prima facie evidence of title, there was no need of further proof of indebtedness to the mortgagee. 18 Pick. 394.</p> <p>3. The mortgage is of something more than “ a ship to be built.” It describes a vessel in frames at the time the instrument was executed, and that the materials of which she was to be composed were then in the yard. That a person cannot grant or mortgage property of which he is not possessed and to which he has no title, is an axiom of Lord Bacon’s which I am not disposed to controvert. But it is equally well established that a person may grant personal property of which he is potentially though not actually possessed. A man may grant all the wool which shall grow on the sheep which he owns at the time of the grant, but not the wool which shall grow on sheep not his, but which he may after-wards buy. Lunn v. Thornton, 1 Man. Grang. & Scott, 383. In Macomber v. Parker, 14 Pick. 497, the same principle is enforced. In Abbot v. Goodwin, 20 Maine, 408, it is carried still further, and applied to goods exchanged for goods mortgaged, a stretch of principle which is not needed to cover the case at bar. Certainly a mortgage on a colt will cover subsequent growth. A mortgage on a building partly finished will cover the erection in its completion. The finishing of the article mortgaged is the “ new act done by the donor for the avowed object and with the view of carrying the former grant or disposition into effect.” Lunn v. Thornton, before cited.</p> <p>At the time of the attachment, then, in September, 1854, Pike had a valid and subsisting mortgage upon the ship. Such being the case, McCurday had no attachable property in her. The law does not allow personal property under mortgage to be attached. The provision of the R. S., c. 117, § 40,, allowing attachment, was repealed by c. 31, laws of 1842. It is liable to seizure on execution, but not to attachment.</p> <p>4. The plaintiff had no lien claim on the ship.</p> <p>5. If Pike shall be defaulted on the ground of breach of contract in not returning property receipted for, although the property was his own, still judgment can only be rendered against him for nominal damages. It can at most be but a technical breach of contract. Had the ship been returned to the officer in accordance with the contract, he could only have sold the individual interest of McCurday, after the payment of the partnership debts and the discharge of Pike’s mortgage. It does not appear that this interest could have been of any value. As matter of fact it was entirely worthless. If of no value, Perkins would have been liable to Sawyer only for nominal damages in any event; even though he had neglected to levy the execution. The liability of the receiptor to the officer is measured by that of the officer to the creditor; it can never exceed it.</p>

Exceptions from Nisi Prius, Appleton, J., presiding. This was an action of the case for maintaining a dam across Chase’s stream, and thereby obstructing the passage of plaintiff’s logs.

<p>A vessel like any other chattel may, as between the parties, pass by delivery. The property will vest in the purchaser without a bill of sale, and an action can be maintained for the purchase money in case she is lost before paid for.</p> <p>A. offered to sell his interest in a vessel to B. for a given price. B. accepted the proposition, took possession of the vessel, loaded and sent her on a voyage. Two days out she was lost. B. had received no bill of sale of her, and the terms of payment had not been definitely agreed upon. A. brought his action to recover the agreed price. Reid, that the plaintiff was entitled to judgment for that sum.</p> <p>Property, agreed to be paid for on delivery, having been delivered without requiring payment, the right to payment at the time of delivery must be taken to be waived, and the time of payment left to be arranged by the parties.</p> <p>Where goods have been purchased and delivered, under an agreement to pay for them by a note with surety, payable at a future time, if the note be not seasonably furnished, the seller may have an action of assumpsit immediately for the money.</p> <p>As to what facts constitute a delivery of chattels.</p> <p>The difficulty of ascertaining the construction of a contract is no reason for making it nugatory. Such a consequence is to be avoided if possible.</p> <p>A principal having given directions to his agent to perform an act in his behalf^ and the agent having performed the act before receiving the directions, it was held, that the action of the agent was ratified by the receipt of the instructions.</p>

<p>On Report from Nisi Prius.</p> <p>This was an action of replevin for the bark Mary Lee, which was built by Gilbert Balkam at Eobbinston, during the year 1854.</p> <p>The general issue was pleaded and joined, with a brief statement, alleging that the property belonged to the defendant, and was not the property of the plaintiffs; and that defendant justified as deputy sheriff, under the writ of John G. Wetherell & als. v. Gilbert Balkam and William Pike, trustee.</p> <p>The plaintiffs relied upon a mortgage from Gilbert Balkam to them, dated July 26, 1854, and recorded at Robbinston, August 2d, 1854. Also upon another mortgage from Balkam to the plaintiffs, dated December 9th, 1854, and recorded at Robbinston, December 11th, 1854. Also upon a third mortgage from Balkam to said plaintiffs, dated December 27th, 1854, and recorded on the same day in the collector’s office for the port of Passamaquoddy; and the register for said vessel was taken out of said office the same day.</p> <p>The defendant, as deputy sheriff under B. W. Farrar, sheriff of Washington county, upon the 22d day of December, 1854, attached the said bark upon the above named writ.</p> <p>The writ, Wetherell v. Balkam and trustee, was dated the 22d day of December, 1854, and was entered at the April term of the Court in 1855, was continued to the October term of the Court in 1855, when the trustee was discharged, and the defendant, Gilbert Balkam, was defaulted. The action has since been continued for judgment from term to term, and no part of the debt sued for in the same has been paid.</p> <p>The bark Mary Lee was launched on the 14th day of December, 1854, and is the same vessel which, in different stages of construction, is mentioned in the several mortgages above described. Said mortgages were duly executed and recorded.</p> <p>If the action can be maintained upon this state of facts, the defendant is to be defaulted; otherwise, the plaintiffs are to become nonsuit, and a return of the property ordered.</p> <p>The single question involved is, whether an attaching creditor shall take precedence.of a mortgagee.</p> <p>1. It appears from the mortgages that the plaintiffs supplied Balkam with means to build the vessel, and took mortgages on her in different stages of progress to secure themselves for advances made. The mortgages state an indebtedness for a large sum, and it is for the defendant to show that it has been discharged, proof of the execution and record of the mortgage being prima facie evidence of title in the plaintiffs. Davis v. Mills, 18 Pick, 394.</p> <p>Under these circumstances, dates govern. As neither party claims by virtue of statute lien, it is a mere question of priority in time.</p> <p>The plaintiffs’ first mortgage is dated July 26, 1854, for $6000; recorded August 2, 1854. The second one is dated Dec. 9, 1854, for $9000; recorded Dec. 11, 1854. The attachment under which the defendant claims is dated Dec. 22, 1854.</p> <p>The record in this case was made by the town clerk of Robbinston, the town in which Balkam resided at the time of the conveyance. The statute of the 31st Congress, chap. 27, 1850, of course contemplates only vessels that are registered or enrolled, and not those in the process of completion. A vessel on the stocks, or lying in harbor after launching, and before enrollment or registry, cannot be said to be a vessel of the United States. Non constat that she ever will become naturalized. She may be built for foreign use.</p> <p>The object of that statute, taken together, seems only to be to have the custom house record show the exact state of the title. It provides that the portion of the vessel owned by each owner shall appear; and when this appears, any mortgage or other conveyance by either of them should also appear. The United States statutes of 1792 do not even oblige an owner of a vessel to register or enroll. The language of the statute is that it may be done. If the owners wish for the privileges appertaining to vessels of the United States, they must either enroll or register them. The evident purpose of the whole navigation law is to allow owners of vessels to enroll or register them; and if they do, the portion owned by each part owner must appear, and where this is done, all subsequent mortgages or other conveyances must appear of record. They can use the record if they please; but in case they do so, every thing must appear; and until parties owning vessels have them surveyed by the custom house officer, and furnish their bonds, the United States law does not apply to them any more than it does to the ship timber and iron out of which they are made.</p> <p>The state law was complied with while the vessel was in her inchoate state, and that was the only law applicable to her until the navigation laws took effect by her entry at the custom house.</p> <p>2. It would be quite impossible to apply the United States law to vessels unregistered, without first determining what is a vessel. Is it when she is in frames, or half completed, or two-thirds finished, or entirely done ? But when the proper officers measure and register her, then there is no further question. They may do this before the vessel is completed or after; and whenever it is done, whether the vessel be launched or not, the United States law takes effect, and not until then. In this case it does not appear in what state the bark was when the first mortgage was given. The mortgage states that Balkam was then building her. When the second mortgage was given, the vessel was more nearly complete. Either mortgage is good as a conveyance of materials; the same attached by the defendant in this case.</p> <p>1. That the plaintiffs’ right of action depends upon their title to property in the bark at the date of their writ; and that such title, if they have any, is only in the last mortgage, dated December 21th, 1854, and that the former mortgages were merged in the latest mortgage. Jones v. Johnson, 3 Watts & Serg. 276.</p> <p>2. The plaintiffs, by taking the last mortgage, under the circumstances of the case, and for the reasons above stated, must be considered in law to have waived their rights under the prior mortgages. Paul v. Hayford, 22 Maine, 236.</p> <p>3. If the above positions are correct in law, and upon principle, then the plaintiffs cannot maintain this action, as they had no right of possession on December 30th, the date of their action, having by express contract parted with that right. Wheeler v. Train, 3 Pick. 255; Ingraham v. Martin, 15 Maine, 373; Pierce v. Stevens, 30 Maine, 184.</p> <p>4. By the agreement of parties, if the plaintiffs cannot maintain their action, there is to be a return of the property.</p> <p>5. If the Court should be of opinion, that the latest mortgage did not merge the others, and that they were, December 30th, valid and subsisting securities, then it is submitted, that in the case at bar, it is not enough for plaintiffs to prove simply the execution and record of the two mortgages at Robbinston.</p> <p>There must be pro'of of the delivery of the mortgage deeds to the plaintiffs, or their agent for them, or the assent of plaintiffs before the attachment by defendant, and there is no such proof; and the words “duly executed” in the statement of facts, do not admit the delivery; and in Davis v. Mills, 18 Pick. 394, the point of delivery was not made.</p> <p>Non constat, that because the plaintiffs had their deeds when this case was drawn up, that there had been any delivery of them by Balkam, at the date of Perkins’ attachment, or before this action was commenced. Jewett v. Preston, 27 Maine, 400; Witham & ux. v. Butterfield, 6 Cush. 219; Baird v. Williams, 19 Pick. 381; Maynard v. Maynard, 10 Mass. 456; Bullock v. Williams, 16 Pick. 33; Dole v. Bodman, 3 Met. 189; Lamson v. Thornton, 3 Met. 275.</p> <p>The record of the two mortgages in Robbinston, was not, as to the defendant, and the creditors of Balkam whom he represents, sufficient, without an actual delivery of the bark, and the keeping of her in possession.</p> <p>The plaintiffs lived in New York, and it does not appear that they had any agent in this State.</p> <p>The statute makes provision for attachment of personal property under mortgage, upon first making tender of the debt due. In this case, tender became impossible, as there was no person to whom tender could be made.</p> <p>If record is sufficient in all cases, it puts it into the power of parties here, to mortgage valuable property for a trifling sum, bona fide, to people in California, Calcutta, or any remote region, where tender would be impossible, and so to hold and use it in defiance of the rights of creditors.</p> <p>It is, also, in like case, impossible to make demand on the mortgagee to state the amount of his mortgage claim, as provided in § 71, c. 114, Revised Statutes.</p>

On Exceptions from Nisi Prius, Appleton, J., presiding. This was an action of the case by the proprietor of the Columbus mill, so called, situated on the St. Croix river, at Calais, against the proprietor of the Franklin mill, for diverting the water from the flume of the Columbus mill, and for obstructing the race-way, thereby causing back water at said mill. Plea, the general issue with brief statement.

On Report from Nisi Prius. Debt on a judgment recovered March 26, 1836, damage §130,38, and costs §21,28, and on a judgment recovered fourth Tuesday of March, 1836, for possession of a certain parcel of land situated in Unity, in said county, and for §43,43 costs. Plea, nil debet. All the facts, essential to a proper understanding of the points in issue, are stated in the opinion of the Court.

<p>On Exceptions from Nisi Prius, Hathaway, J., presiding.</p> <p>Assumpsit upon a promissory note not negotiable. Plea, the general issue. The defendant introduced in evidence a contract made by the plaintiff with him, by which the former agreed to deliver to him a certain quantity of ship timber for the construction of a vessel, and suitable plank for the same purpose. The defendant admitted 'that the timber had been delivered according to agreement, and claimed that the note declared upon in the action was given in payment therefor. He also alleged that the plank had not been delivered as contracted for, whereby he had suffered damages to a large amount, which should be deducted from, or be allowed in set-off to the note. For the purpose of showing the origin of the note in suit to be as alleged, the defendant introduced, subject to objection, a contract similar in character to the one between these parties, entered into by the plaintiff with S. Cobb & Co. for the delivery of timber and plank, and proved the delivery of the timber under that contract, the settlement for it by the receipt of a note from S. Cobb & Co., similar to the one in suit, and the subsequent failure of the plaintiff to deliver the plank according to the other provisions of said contract. Other evidence was also introduced for the purpose of showing that the plaintiff had not delivered the plank to the defendant, and to establish the amount of damages sustained by the defendant in consequence of such breach of the contract on the part of plaintiff. Several points were raised in the case not involved in the decision of the Court, and therefore unnecessary to be stated. The cause was submitted to the jury under instructions from the presiding Judge, all material parts of which, and all additional facts necessary to the understanding of the case, fully appear in the opinion of the Court.</p> <p>1. This action is assumpsit upon a note not negotiable, the consideration for which had no connection with the timber and plank contract.</p> <p>Sec. 24 of c. 115 of the Devised Statutes, provides, that “when there are mutual debts or demands between the plaintiff and defendant, in any action, one demand may be set off against the other.” Sec. 25 provides, that defendant shall file a statement of his demand on the first day of the term of the Court at which the suit is made returnable. And a defendant in an action cannot, in his defence, avail himself of any demands he may have against the plaintiff, unless the same be filed by way of set-off, pursuant to the statute; or unless they arose from an actual payment of the plaintiff’s demand. Clark v. Leach, 10 Mass. 51; Pillsbury v. Fernald, 10 Maine, 168.</p> <p>2. There is no proof that the note in suit was given for the timber stipulated for in the contract introduced, and no sufficient proof that the plank was not delivered according to said contract. The presiding Judge, therefore, erred in allowing testimony in regard to damages to go to the jury without any conditions of limitations upon these points. He should have instructed the jury not to consider this part of the testimony at all, unless it was satisfactorily proved to them that the note grew out of the contract.</p> <p>The plaintiff, by his contract, which is made a part of this case, agreed to furnish and deliver to the defendant a certain quantity of timber and plank. The timber he furnished according to his contract; the plank he did not. The note was given in part payment of the timber ; and as the contract for the delivery of the timber and plank was one contract, and the plaintiff failed to deliver the plank, the damage the defendant sustained by the breach of the contract, was rightfully allowed in defence of the note, without being filed in set-off.</p> <p>The note having been given in part payment for the timber, if the contract for the timber had been a separate and independent contract from the contract for the plank, then there might be some reason why the amount in set-off should have been filed. But the contract for the timber and plank, was entire; and it is a well settled principle, that damages sustained by the non-fulfillment of a contract, may be given in evidence under the .general issue, to defeat a non-negotiable note given as the consideration of the contract, or in payment under the contract.</p>

On Exceptions from Nisi Prius, Hathaway, J., presiding. This was an action of assumpsit. The amount claimed was $220,62. The defendant filed his specifications of defence with the clerk of the court for the county of Waldo, as follows:— •“Waldo, ss. — Supreme Judicial Court, Oct. term, 1855. “ Simpson Hart v. Joseph P. Hardy. “ The defendant in this action, says for a defence, that the plaintiff has no claim whatever against him.

Exceptions from Nisi Prius, May, J., presiding. This was an action of trover for a cask and twenty gallons of rum, taken from on board a vessel. Plea, general issue and a justification. The defendants, to justify the taking, offered a complaint made by said Palmer, defendant, and others, and a warrant and judgment of Woodbury Davis, a justice of the peace, which were objected to.

Exceptions from Nisi Prius, Hathaway, J., presiding. This was an action on the case to recover damages for an injury occasioned by a defect in a highway in the town of Searsport.

<p>Parol evidence is inadmissible to contradict or vary the terms of a valid written instrument.</p> <p>But the writing may be read in the light of surrounding circumstances to get the intent and meaning of the parties.</p> <p>The description in a deed contained the following : — “ All that part of lot 87, 3d division of lots lying westerly of the centre of the old channel of Little river stream:” — Held, that parol evidence was admissible to explain the phrase “ old channel.” Instructions, in such case, limiting the application of the evidence by the jury simply to the question of the antiquity of the channel, were erroneous.</p> <p>The identical monument referred to in a deed may always be shown by parol proof.</p> <p>Evidence of the language and acts of the parties to a deed at the time of the conveyance, and subsequent thereto, to show how they construed it, and what line they recognized as the boundary, is admissible.</p> <p>It is competent to prove by parol what was agreed on and understood as the boundary by the parties at the time of the conveyance, and how they construed the language of the deed.</p>

On Exceptions from Nisi Prius, May, J., presiding. This was an action of trespass quare clausum. Plaintiff introduced a warranty deed from Benjamin Joy to Stephen Robinson, dated June 27th, 1823, duly acknowledged and recorded.

On Agreed Statement of Facts, from Nisi Prius. This was an action of assumpsit upon a policy of insurance, made by the defendant corporation to the plaintiff, Nov. 15, 1848. On Dec. 27, 1848, the plaintiff mortgaged the insured property to Oliver Eveleth and likewise assigned his policy. In March, 1850, he conveyed one undivided half part of the same premises, subject to the mortgage, to one B. F. Greeley.

On Exceptions from Nisi Prius, Rice, J., presiding. This was an action of assumpsit, in which the plaintiff claimed an amount due on an account annexed; also rent under a lease of a farm occupied by the defendant. The lease is dated December 11th, 1811, writ dated March 15th, 1853.

<p>A., for a valuable consideration, agreed to convey to B. certain premises within two years, provided B. paid a stipulated sum of money -within that time to A., and also all taxes that might be levied on the premises, and an agreed sum annually for rent. B. failed to perform the conditions, allowed the property to be sold for taxes, purchased the tax title, and defended against A. by force of that title: —</p> <p>Held, that it was the duty of B. to have paid the taxes, and that he cannot set up, as against A., a title which he obtained by a violation of that duty.</p>

This was a Bill in Equity to redeem certain mortgaged real estate. The right to redeem was not questioned, the only issue being the amounts due to the several respondents, upon which the petitioner prayed the judgment of the Court.

On Motion foe New Trial from Nisi Prius, Shepley, C. J., presiding. This was a writ of review. The cause was tried at the March term, 1855, and the jury returned a verdict that the plaintiff in review did promise in manner and form as the said Gage in his original writ had declared against him. The plaintiff in review, then filed a motion for a new trial, on the ground that the verdict was against the evidence and the weight of evidence.

On Exceptions from Nisi Prius, May, J., presiding. This was an action to recover damages for personal injuries received by the plaintiff, a minor, in consequence of an alleged want of a sufficient railing on the highway.

<p>By Revised Statutes, e. 105, § 36, it is provided, that “ no bond, required by law to be given to the Judge of Probate, or to be filed in the probate office, shall be deemed sufficient, unless it shall have been examined and approved by the Judge, and his approval thereof, under his official signature, written thereon— Held,, that the approval of sureties on a prior bond is not to be taken as approval of the same sureties on a subsequent bond.</p> <p>Each probate bond must be specifically acted on by the Judge, as required by the statute.</p>

On Exceptions from Nisi Prius, Cutting, J., presiding. This was an action of assumpsit upon two contracts of insurance alleged to have been made by the defendants. They filed specifications of defence, and pleaded the general issue. The plaintiffs introduced deeds and other evidence tending to prove that the female plaintiff was the owner in fee of the property destroyed by fire, at the time the contracts were alleged to have been made, and at the time of the loss.

On Exceptions from Nisi Prius, Cutting, J., presiding. This was assumpsit on an alleged contract of warranty of the soundness of a horse sold by the defendant to the plaintiff, and for breach thereof. There was evidence tending to show on the part of the plaintiff, that the horse was unsound immediately after the sale, and on the part of the defendant, that the horse was sound up to the time of the sale.

On Report from Nisi Prius, Shepley, C. J., presiding. Assumpsit to recover for fourteen shares of stock in the North Wayne Scythe Company. In a suit against that company, it was thought necessary that plaintiff should be a witness. To be so, his stock, consisting of fourteen shares, must be sold. They were transferred to defendant, by L. M. Morrill, who was counsel for the company; and the plaintiff testified. He also stated that his shares were sold to defendant.

<p>A mortgagee has no attachable interest in the premises so long as the mortgage remains open.</p> <p>The purchaser of an equity of redemption sold on execution, has no attachable interest in the premises during the year -within which it may be redeemed.</p> <p>A. mortgaged certain premises to B. A.’s equity of redemption was then sold on execution and purchased by B. C. then attached the premises in a suit against B., and levied thereon the execution which issued on the judgment recovered by him in the suit. But A. paid the debt secured by the mortgage before foreclosure ; also the sum for which the equity sold, and interest, within one year : — Held, that B. had no attachable interest in the premises, and that O. acquired neither legal nor equitable claim thereto by the attachment and levy.</p> <p>The payment of a debt secured by mortgage may be proved by parol; and so may the payment of the sum to redeem an equity of redemption sold on execution.</p>

<p>A certificate, under the hand of the governor and the seal of State, attested by the secretary, that a person had been appointed and (qualified to solemnize marriages, and that he continues to hold the office, is not legal evidence of the person’s authority.</p>

Exceptions from Nisi Prius, Tenney, C. J., presiding. This was an action of assumpsit for the recovery of the value of supplies furnished by the plaintiffs to certain poor persons, alleged to have a settlement in the town of Bingham.

Exceptions from Nisi Prius, Tenney, C. J., presiding. Trustee Disclosure. — .The alleged trustee in this case disclosed the following facts:— “Prior to the service of the plaintiff’s trustee writ on me, Mrs. Harriet Paine, of Jackson Plantation, wife of Daniel Paine, of said Jackson Plantation, tendered to Charles Pike three hundred and twenty dollars in specie, and deposited the same in my hands, to pay certain notes given by said Daniel Paine to said Pike, and to redeem…

<p>On Facts Agreed.</p> <p>This was an action of trespass to recover the value of certain liquors seized by virtue of a warrant which alleged them to be in the possession of a person other than this plaintiff, the owner, and intended for sale, in violation of law, by said third person. The ease was submitted to the full Court upon the pleadings in the case, in accordance with the following agreement:—</p> <p>“This case is to be decided upon the declaration and defendant’s pleadings, which are to be copied and made a part of the case. The plaintiff was, at the time of the taking, a duly appointed agent of the town of Anson, for the sale of liquor, under the statute of 1853. If the matters set forth in the defendant’s special plea, are an answer to the action, judgment is to be rendered for the defendant. If the matters therein alleged are not sufficient to bar the plaintiff’s action, judgment is to be rendered for the plaintiff, upon the general issue, reserving the right to the defendant to be heard in damages.”</p> <p>(Signed,) “ P. M. Poster, Pl’ff’s Att’y.</p> <p>“ Josiah PI. Drummond, Def’ts Att’y.”</p> <p>The plaintiff’s declaration was: —</p> <p>“ In a plea of trespass, for that the said Kimball, on the 9th day of July, at Waterville aforesaid, with force and arms took and carried away the goods and chattels, viz.: — five barrels of New England rum, of the value of one hundred dollars, and one barrel of Holland gin, of the value of sixty-three dollars, all the property of the plaintiff, then and there found and being, against the peace of the State and to the damage of the plaintiff, (as he says,) the sum of three hundred dollars.”</p> <p>To this the general issue was pleaded, with the following special plea:—</p> <p>“ And for further plea in this behalf, by leave of Court first had and obtained, the said defendant says, that as to all the trespasses in the plaintiff’s declaration mentioned, except the taking and carrying away of the five barrels of New England rum and one barrel of Holland gin, he is not guilty thereof as the plaintiff above against him complains, and of this he puts himself on the country.</p> <p>“ By Josiah H. Drummond, his Attorney.</p> <p>“And the plaintiff, likewise,—</p> <p>“ By P. M. Poster, his Attorney.”</p> <p>As to the residue of the trespasses complained of, the defendant pleaded specially, with the usual formalities, in justification and in bar of recovery by the plaintiff, that in taking the liquors, and in all else done by him in the premises, he acted as coroner which he was, nndcr and by virtue of a legal warrant issued by Joshua Nye, jr., a justice of the peace for the county, upon complaint duly made before the said justice, and directed to the defendant,* (the office of sheriff of Kennebec county being then vacant); and that all Ms acts and doings complained- of were done in obedience to tbe commands of said precept, and were lawful. Tbe plea concluded with a verification and tbe usual prayer for judgment and for bis costs.</p> <p>1. The allegations in the declaration are admitted. Do the pleadings set forth any defence ? We say they do not.</p> <p>2. Are the proceedings of the justice and the officer conclusive ? We say they áre not.</p> <p>3. These were unknown to the plaintiff. The warrant was issued and the seizure of bis property made without the slightest notice to him.</p> <p>4. No presumption of law arises against the plaintiff.</p> <p>5. The pleadings do not show that any complaint was made before the justice, to authorize subsequent proceedings.</p> <p>6. There is nothing in the pleadings, or officer’s return, showing any judgment, or how the property was disposed of.</p> <p>7. Section 33 of the law of 1855, does not contain any distinct, unambiguous saving clause.</p> <p>8. Plaintiff was duly licensed. Preston v. Drew, 33 Maine, 558; State v. Robinson, 33 Maine, 564.</p> <p>1. It is objected that a coroner has no right to serve the process under which the defendant justifies, even when there is no sheriff. R. S., c. 104, § 61, settles this point. The statute of 1853 contains nothing repugnant to this provision of the Revised Statutes.</p> <p>2. The pleas show a justification. They are in the usual form. Story, 516. If the liquor law of 1853 is constitutional, they are good in substance.</p> <p>3. An officer is bound to execute a warrant, and ho is not bound to decide whether a statute is constitutional or not. If bound to execute a warrant, he will be protected in so doing. State v. McNally, 34 Maine, 210; Smyth v. Titcomb, 31 Maine, 272, 285.</p> <p>4. But the Act additional to c. 170, of the R. S., approved March 16, 1855, expressly establishes this defence.</p> <p>5. It is said, that this law is unconstitutional and void. As it affects only the remedy, it is not unconstitutional, though it affects suits pending. This law merely changes or restricts the remedy, and such laws have been decided to be constitutional. Springfield v. ITamden, 6 Pick. 501; 19 Pick. 48; 22 Pick. 430; Thayer Sjdl. v. Seavey, 11 Maine, 284; Oriental BanJc v. Freize, 18 Maine, 109; Read v. Frankfort Bank, 23 Maine, 318.</p> <p>«A. remedy for a party may be changed or wholly taken away by the Legislature, without contravening the constitution of the United States.” The same principles are decided in 3 Pick. 508; 11 Pick. 28; 13 Mass. 1; 5 Mass. 409.</p> <p>6. The Legislature may constitutionally enact laws to make valid and legal the doings of public officers who have exceeded their authority, although by such law's individuals may be deprived of rights previously vested. Walter v. Bacon, 8 Mass. 468, 472; 9 Mass. 151, 153; 9 Mass. 360, 363. These cases are cited and approved in Thayer v. Seavey, above cited. The right does not vest until judgment; the commencement of an action does not affect the right either way. See cases above cited.</p>

Agreement of Facts from Nisi Prius. This was an action of assumpsit, to recover for supplies furnished Thomas Raymond and family, as paupers. The proper notice and reply, denying liability, were admitted, the only question being one of settlement; the defendants contending that the paupers’ settlement was in Kenduskeag and not in defendant town.

Bill in Equity. This bill in equity is accompanied by an agreed statement of facts, which are fully presented in the opinion of the Court.

On Demurrer from Nisi Prius. This was an action of scire facias, against the surety in a recognizance, on appeal from a justice of the peace. The defendant demurred to the declaration. The question in issue is stated in the opinion of the Court.

<p>On Report from Nisi Prius, Appleton, J., presiding.</p> <p>This was an action on a draft. The facts in the case are stated in the opinion of the Court.</p> <p>After the evidence was in, a default pro forma, by consent, was entered.</p> <p>If, upon the evidence, the action is maintainable, the default is to stand, and judgment is to be rendered for such sum as the plaintiffs may, upon legal principles, be entitled to recover. If not maintainable, the default is to be taken off, and judgment rendered for the defendant.</p>

Exceptions from Nisi Prius, Appleton, J., presiding. This was an action of trespass, for alleged negligence of defendant’s minor son and servant, in driving against the female plaintiff, in Main street, Topsham. The testimony was to the effect, that the accident happened while the female plaintiff was walking along in the carriage path, in the same direction in which the defendant’s horse and sleigh, driven by his minor son, were moving.

On Exceptions from Nisi Prius, Appleton, J., presiding. This was a writ of entry. Plea, general issue. The land in controversy was formerly, with lands adjoining, the estate of Richard Look, who conveyed said estate to E. J. Oliver by deed, March 12, 1850. It lies in Georgetown. The plaintiff’s ancestor, Samuel Kendall, deceased, under whom he claimed by inheritance, attempted to make an attachment of the land Dec. 2d, 1850.

On Report from Nisi Prius, Goodenow, J., presiding. This was an action on a poor debtor’s bond, signed by Davis as principal and the other defendants as sureties, dated Feb. 20, 1855, and given in accordance with the provisions of the Revised Statutes, to procure the release of Davis from arrest on execution.

<p>It is incumbent on the Judge presiding in a trial, to give to the jury, at the request of a party, any instruction which is in accordance with law and is based on evidence in the case tending to show the state of facts which it supposes; but he is not bound to give it in the language of the request, nor as a “requested” instruction.</p> <p>When an injury is occasioned by a defect in the highway and some other cause for which the town is not responsible, the town is not liable in damages for the injury.</p> <p>In order to render the town liable, the injury must be occasioned solely by its neglect.</p> <p>A defect in the highway cannot be held to have occasioned an injury when some other cause combined to produce it.</p> <p>If the jury find, in an action against a town for an injury alleged to have been occasioned by a defect in the highway, that there was a defect in the plaintiff’s harness which did in fact contribute to produce the injury, he cannot recover.</p> <p>If such defect in the harness was unknown to the plaintiff, and the exercise of ordinary care and prudence would not have enabled him to discover it, the result will still be the same; he cannot recover for the injury.</p>

On Exceptions from Nisi Prius, Tenney, J., presiding. Assumpsit on a note of the following tenor:— “East Thomaston, Jan. 28, 1845. “ Value received, we jointly and severally promise to pay the president, directors and company of the Lime Rock Bank, or order, one hundred and seventy-five dollars in sixty days.” (Signed,) “Henry McIntosh, “John L. Mallett, “John. Spofford.” On the back of the note were the following indorsements : “May 28.

On Report from Nisi Prius, Cutting, J., presiding. This was an action of debt on a judgment. The defendant pleaded a discharge in bankruptcy and produced the evidence. The plaintiff produced the original writ on which the judgment was rendered, and a copy of the receipt of defendant, as follows:— “$436,50. “Portland, Nov. 9, 1835. “Received of Capt. John Phillips, four hundred and thirty-six dollars and fifty cents, which.

<p>On Report from Nisi Prius.</p> <p>This was an action of trespass for taking what were alleged to be plaintiffs’ goods.</p> <p>The defendant was sheriff, and justified under an attachment against one Barker.</p> <p>A verdict was returned for defendant, and the plaintiffs moved to set the same aside, as being against the evidence in the case, the weight of evidence, and the law. Another cause assigned was, (and the facts were certified to be correct,) that the said cause was committed to the jury, and that, by consent of parties, they were informed that they might, when agreed, seal up their verdict and separate and return it to Court the nest morning. They did separate, and the nest morning, on being called upon, a sealed verdict was handed by the foreman to the clerk who read the same: it being a verdict for the plaintiffs without any assessment of damages. On being informed. that their verdict was informal, they, by their foreman, asked to retire, but were informed by the Court that it was not authorized to allow them to consider the case over anew after they had separated; that if the defect in the verdict was matter of form only, it might be amended by the foreman without leaving their seats. The foreman then stated that it was matter of form only, and he, by leave of Court, inserted the word “not” before the word “guilty,” when the verdict, thus amended, was read to the jury and affirmed.</p>

<p>A., summoned as trustee of B., disclosed that he had, prior to the service on him, sent B., (his son in law,) a check for five hundred dollars, and had after-wards taken a note therefor; but that he intended it as a gift to his daughter, and had never designed to call for the payment of the note: — Held, that being intended as a gift, and being so regarded by the parties at the time, they could not afterwards change the nature of the transaction so as to affect the rights of third parties.</p> <p>A supposed trustee is not chargable for real estate in his possession, the property of the principal debtor.</p> <p>The disclosure of a trustee is to be taken as true by the Court; and the affirmative statements therein contained are to receive full credit, unless other facts or circumstances disclosed, are inconsistent therewith.</p>

<p>An oath, taken by assessors, that they will “faithfully and impartially perform. the duties assigned them,” answers the requirement of statute, directing them to be “ duly sworn.”</p> <p>The highway tax must be’deemed to be assessed by the assessors of the then current year.</p> <p>The assessors are required by statute to ascertain from the lists of the highway surveyors of the preceding year, who had not discharged their highway taxes for that year, and to place the amounts found due from such persons in a separate column of the money tax assessed by themselves.</p> <p>All warrants issued by the proper authorities, are, at common law, to be executed and returned by the officer to whom they are directed, with his doings thereon; and his return, as to other parties, is conclusive.</p> <p>“A list of the persons, and the sums” required by statute to be delivered by assessors to highway surveyors, may not properly be denominated a warrant.</p> <p>The list of delinquent persons, with the amounts of the deficiency of each, -which it is the duty of highway surveyors to render to assessors, cannot be legally rendered, unless the surveyor has given the notice and made the demand for services required by statute.</p> <p>The statute requires no return other than those lists, and it may be regarded that the persons whose names are borne on these lists are delinquent for the sums respectively specified.</p> <p>A return of such list, without previous compliance with the requirements of statute, would render the surveyor liable in damages to the aggrieved party.</p> <p>A list, not bearing the official signature of the surveyor, is in legal contemplation no list. It will not render the surveyor responsible nor authorize the ulterior proceedings of the assessors.</p> <p>A surveyor will not be allowed to perfect his list, if his own evidence shows that his preliminary proceedings would not justify it.</p> <p>The records in the offices of the clerk and assessors should show that the surveyors’ duties have been properly discharged.</p> <p>A highway surveyor returned a list of the persons who had not discharged their highway tax, and the sum for which each was delinquent, but did not affix to it his official signature. The assessors of the following year treated it as a legal list and assessed the respective sums in the money tax of that year. By virtue of the warrant from those assessors, the collector seized and sold certain property to discharge a tax, and the owner brought his action of trespass against the assessors : — Held, that, although the assessors erred in supposing they had before them legal evidence of the deficiency, and in transferring the sum to the omitted list, yet, as there appeared to be no want of “personal faithfulness or integrity,” they were not liable.</p> <p>The subject matter of complaint in such case might properly he presented to the assessors, with a right of appeal to the county commissioners, in the event of an unsatisfactory result.</p>

<p>A. and 13. gave a joint and several promissory note, which A. paid at maturity, 33. having deceased: — Held, that the note, having been paid by A., and being in his possession, was evidence of his claim against the estate of his co-promisor, for contribution.</p> <p>A., being indebted to C., thereafter delivered the note to him, and took a receipt, whereby O. promised to account for it, when called for, or to return it: — Held, that the transaction was a valid assignment between the parties, and, being bona fide, could not be defeated by the process of foreign attachment.</p> <p>Such delivery was a sale both of the evidence of the debt and of the debt itself, and the claim against 33.’s estate thereby became the property of O. as perfectly as if it had been a note, not negotiable, against 33. and payable to A.</p> <p>The instrument given by C., furnished a valuable consideration, and it consequently constituted an essential element of the assignment.</p> <p>An instruction, although erroneous, if it be not material and injurious to the excepting party, -will not furnish ground for setting aside a verdict.</p>

On Exceptions, &c., from Nisi Prius, Howard, J., presiding. This was an indictment, containing four counts, for assault, with intent, &c. The prisoner was found guilty upon the last count. A motion was made by his counsel in arrest of judgment ; also that the verdict might be set aside, and a new trial granted. Yarious causes were assigned; but those which had a bearing upon the decision are stated in the opinion of the Court.

<p>On Exceptions from Nisi Prius, Howard, J., presiding.</p> <p>Indictment, under R. S., c. 157, § 5. The verdict was guilty. The prisoner, by his counsel, after verdict and before sentence, moved for arrest of judgment, for various alleged insufficiencies of the indictment. The motion of the defendant was overruled by the presiding Judge, and he excepted. The indictment charged the defendant with having in his “ custody and possession at the same time, ten similar false, forged and counterfeit bank bills,” &c. The defendant, among .other objections, excepted to the sufficiency of that allegation, contending that the language of the statute, “ in the similitude of,” should hare been employed, and that the words of the indictment were not equivalent thereto.</p> <p>There should have been an averment in the indictment, that the bills described therein “were in the similitude of the bank bills or notes.” R. S., c. 157, § 5; 1 Chitty’s Grim. Law, 281, 282, 283; State v. Brown, 4 Porter, 410; Hamilton v. Commonwealth, 3 Pa. 142; State v. Cassidas, 1 Nott & McCord, 91.</p> <p>The averment should be in the language of the statute creating the offence. State v. Bangbee, 3 Blackf. 308; U. S. v. Lancaster, 2 McLean, 431; Whiting v. State, 14 Conn. 437.</p>

Petition for Writ of Certiorari. The inhabitants of the town of Windham appealed from the decision of the County Commissioners of the county of Cumberland, in locating a highway in that town. The Supreme Judicial Court thereupon appointed a committee to view the route and other rontes connected therewith, who subsequently reported, affirming the doings of the Commissioners, which report was accepted by the Court,- and the appellants were ordered to pay costs.

Agreed Statement of Facts, from Nisi Prius, Howard, J., presiding. This was an action brought to recover for supplies furnished by the plaintiffs to Betsey Brown and her daughter, Almedia Brown, as paupers, alleged to have had their legal settlement in Bangor, at the time, the supplies, were furnished. The general issue was pleaded and joined. Legal notice and answer were admitted.

Bill in Equity. The plaintiff claimed to be the owner of the right to redeem the franchise of the Buckfield Branch Railroad Company, together with all the personal and real estate which had been… Held: is that which has been “taken” under the provisions of the first section of the charter, and for the use of which, not for the title, damages have been assessed.

<p>The common law will afford no aid to a party whose claims can be successfully enforced only by a violation of its principles, or in direct contravention of a statute; and this principle is equally applicable to actions sounding in tort.</p> <p>It is upon this principle, that courts have held that no action can be maintained on a bond or contract executed on the Sabbath; for deceit in the exchange of horses on the Sabbath; for damages occasioned by a defective highway while traveling on the Sabbath, or for injury to a horse knowingly-let to be used on the Sabbath, not from necessity or for charity ; on a note given for goods purchased to be peddled out contrary to law; and for compensation for services in trade with an enemy in time of war.</p> <p>In an action of trespass, to recover the value of certain liquors, which had been seized upon a warrant, and for which a writ of restitution had issued, the defendant offered to prove that at the time of the seizure, and for a considerable time previous, intoxicating liquors had been kept for sale by the plaintiff, and that he had been in the habit of selling them in violation of law; which evidence was excluded by the presiding Judge : — Held, that as the value of the liquors must depend upon their status at the time of seizure, the evidence offered was admissible to enable the jury to determine what that status was.</p> <p>The Legislature has power to pass laws altering, modifying, or even taking away remedies for the recovery of debts, without incurring a violation of the provisions of the constitution, which forbid the passage of ex post facto laws.</p> <p>A judicial tribunal cannot declare void a law passed by the Legislature and clearly within the general scope of its constitutional power, because the law is, in the opinion of the Court, contrary to the principles of natural justice.</p> <p>The Act of 1851, c. 211, § 16, which provides that “no action of any kind shall be maintained in any Court in this State, either in whole or in part, for intoxicating or spirituous liquors,” &c., nor “any action of any kind” “for the recovery or possession of intoxicating or spirituous liquors, or the value thereof,” is to be limited in its application to liquors held in violation of law, and thereby liable to forfeiture.</p> <p>The Act applies equally to actions of replevin, trespass, trover and assumpsit.</p> <p>The rights of a plaintiff in an action of trespass are not enlarged by the fact that the defendant seized the property sued tor under an illegal warrant, if, at the time of the seizure, the plaintiff held the property in disregard of law.</p> <p>Judgments are conclusive upon the parties to them, in reference only to such natters as were directly in issue in the case.</p> <p>When the proceedings are in rem, the decree of the Court is an adjudication upon the status of some particular subject, and is binding upon all parties.</p>

<p>The object of the Act of 1844, c. 112, relating to assignments, was to secure the equal distribution of the effects of insolvent debtors not exempt from attachment, among all their creditors, who, after notice, should become parties to the assignment, in proportion to their respective claims.</p> <p>Preferences, given by an assignment, or by the transaction to effect such distribution of which an assignment is a part, render the assignment void.</p> <p>If preferences be given, and they do not appear in the assignment itself, the fact may be shown by proof aliunde.</p> <p>If it appear that it was the purpose of the debtor to give preference to one class of creditors over another, and the different instruments to effect that design were not of the same date nor executed at the same time, they will still be deemed, in law, one transaction.</p> <p>An insolvent debtor, contemplating the assignment of all his property, for the benefit of his creditors, in accordance with the statute of 1844, c. 112, transferred portions of his estate to secure certain honorary liabilities, and shortly thereafter executed an assignment of his remaining property : — Held, that the transfers and the assignment were to be regarded as parts of one transaction, and that, inasmuch as the assignment did not provide for the equal distribution of the debtor’s estate, in accordance with the statute, it was fraudulent and void; and that the assignee was chargable as trustee of the debtor.</p> <p>An assignment must in fact, as well as in form, provide for the equal distribution of the debtor’s estate, not exempt from attachment, or it will not answer the requirements of the statute.</p>

Exceptions from Nisi Prim, Siiepley, C. J., presiding. This was an action on a note, dated March 21, 1850, for $200, on demand and interest; said note purported to be signed by T. M. Hobson and said Fall, as surety, payable to Luther S. Moore, and by him, before, or about the time of the suing out of the writ, indorsed to the plaintiff. After the commencement of the suit, and before the trial, there was proof tending to show, that said note was burned or lost.

Exceptions and Motion fob New Trial from Nisi Trim, Davis, J., presiding. This was an action of assumpsit upon a draft and bank check. The claim for the check was abandoned at the trial. No evidence in support of that claim was offered. The draft or acceptance was as follows: —■ “Boston, March 14, 1854. “$10,000.

On Agreed Statement of Facts from Nisi Trim. This was a writ of entry to recover possession of certain land.

Petition for Certiorari. The principal facts in this case were as follows: — The selectmen of the town of Bethel, laid out a certain public way, and reported the same to the town at a public meeting of the inhabitants, who, as was alleged, unreasonably refused and delayed to allow and approve said way.

On Retort from Nisi Prius, Howard, J., presiding. This was an action of trespass. The general issue was pleaded and joined.

On Exceptions from Nisi Prius, Cutting, J., presiding. This was an action founded on § 9 of c. 67, of R. S. of 1841. Plea, general issue. In the spring of 1855, the plaintiffs and defendant were severally engaged in driving log3 on the west branch of Union river, each party having a large force of men under them, so employed. Their two drives came together at the mouth of Oxhead stream; and the logs in them became so intermixed that they could not be conveniently separated.

<p>A bond for the payment of money, conditioned to be void on the conveyance of land, is treated in equity as an agreement to convey, and will be specifically enforced against the obligor.</p> <p>When the grantee of such obligor takes a conveyance of the land thus agreed to be conveyed, with notice, he will be regarded as holding the same in trust for such obligee.</p> <p>It seems that the assignees of an insolvent debtor, receiving a conveyance of his “ right, title and interest” in land, of which he had previously given a bond to convey upon the performance of certain conditions therein expressed, will hold the estate conveyed, subject to the prior equities of the obligee in such bond.</p> <p>The declaration of a trust may be contained in an indenture between parties, in the recitals of a deed, the conditions of a bond or other instrument under seal.</p> <p>A declaration, in writing, under seal, that A. has purchased a tract of land, subject to mortgage for the joint and equal benefit of himself and B.; that he has advanced the purchase money for and taken a conveyance to himself of the same as security for his advances and interest therein; that he will apply all the profits of the same to the payment of his advances and of the mortgage on the land; and that upon payment of the same he will convey to B. half of the land thus purchased, and equally divide the profits, if any, with him, is a declaration of trust.</p> <p>These facts appearing in the conditions of a bond between the parties, constitute a declaration of trust, in which the obligor is trustee and the obligee the cestui que trust.</p> <p>Such bond is a declaration of trust within the provisions of the R. S. of Maine, c. 91, § 11.</p> <p>By R. S., c. 91, § 33, it is to be recorded in the registry of deeds of the district where the land is; and the recording of it is made “ equal to actual notice thereof to all persons claiming under a conveyance, attachment or execution, made or levied after such recording.”</p>

On Exceptions from Nisi Prius. Assumpsit for seaman’s wages, fifty-one days, at eighteen dollars per month, on board the schooner Gen. Scott. The defendant introduced the shipping articles of the vessel, in which plaintiff sailed, for the voyage during which the wages sued for were claimed to have been earned.

Exceptions from Nisi Prius, Hathaway, J., presiding. This was an action of the case to recover damages for an injury received by the plaintiff, by the upsetting of his chaise, in consequence of his horse taking fright upon a bridge in Bangor. Much testimony was introduced on both sides. The verdict was for the plaintiff and the defendants excepted. The cause was argued at the law term of the Court held at Bangor, in July, 1856.

On Report from Nisi Prim. Assumpsit for supplies furnished by the plaintiff town to one Day, a pauper, who is alleged to have his legal settlement in defendant town. The general issue was pleaded. The proper notices and replies were admitted to have been given, there being no question made except as to the settlement of the pauper. The following facts were agreed.

<p>The State, by virtue of its sovereignty or right of eminent domain, may abridge, control or destroy a public easement in a stream within its limits ; but until it does so by positive legislation all persons may lawfully enjoy such easement in common with the State.</p> <p>It is otherwise in regard to public lands. The person who enters upon them without license is a trespasser ; he has no rights in them in common with the State; he may disseize the State, and after he has acquired title by lapse of time, a release or grant of them by the State to other persons will not disturb his title; but such rights as are a part of the State sovereignty, conferred for the public good, cannot be lost by disseizin.</p> <p>A conveyance by the State of all its right, title and interest in and to the lands over which a navigable stream flows, does not authorize the grantee, or those claiming under him, to use exclusively or to destroy the public easement in said stream.</p> <p>The statutes in relation to the right of erecting mills and mill-dams, and of flowing lands, are not to be so construed as to excuse or justify the erection of a dam in such a manner as to overflow a public highway already appropriated and in actual use, and thereby render it impassable, nor to interrupt or destroy the public easement or right of way in a stream upon which it is constructed.</p> <p>If a stream is inherently and in its nature capable of being used for the purposes of commerce, for the floating of vessels, boats, rafts or logs, a public easement exists therein. In such case the owner of the soil can use it in all modes not inconsistent with the public right.</p> <p>The right of the public exists in such a stream notwithstanding it may be necessary for persons floating logs or boats thereon sometimes to go upon its banks.</p> <p>No accidental or intentional obstruction in a stream, not there in its natural state, will legally take from it its inherent and natural capability as a public highway.</p> <p>Whether a stream is capable of being used as a passage-way for the purposes of commerce is a question of fact for the jury.</p> <p>Streams which are so small and shoal that no logs can be driven in them without being propelled by persons traveling on their banks are not navigable in any sense to give the public a right of way in them.</p> <p>It is not the right of counsel to have a requested instruction to the jury, in itself proper, given in the precise words of the request. It is sufficient if it be substantially given.</p> <p>Tho Court is under no obligation to give instructions, however correct in law, which have no connection with the evidence in the case.</p>

On Exceptions from Nisi Prius, Hathaway, J., presiding. This was an action of trespass guara clausum. Plea, the general issue.

On Exceptions from Nisi Prim, Appleton, J., presiding. Writ of Error to reverse a judgment recovered by the defendant against the plaintiff in error, at the April term, 1855. The plaintiff alleged five several errors, or assigned that number of grounds of error, in the proceedings; to all which the defendant pleaded there was no error. The exceptions to the judgment chiefly relied on were:— 1.

On Exceptions from Nisi Prius, Gutting, J., presiding. This was an action of the case. The plaintiff, in January, 1855,'entered into a contract with defendant to haul for him a load of goods from Bangor to No. 6, in Aroostook county, sixteen miles from Patten, and to deliver them at one Knowles’ in said No. 6, for an agreed price per ton.

<p>On Exceptions from Nisi Prius, Davis, J., presiding.</p> <p>This was an action of assumpsit on an account annexed. The verdict was for the defendant, and the plaintiffs excepted to the rulings of the presiding Judge, excluding certain testimony offered by them in the trial of the cause. When the ease came up for a hearing before the law Court on the exeeptions, the counsel for plaintiffs read an affidavit, subscribed and sworn to by himself, setting forth that certain material alterations had been made in the bill of exceptions, after they had been allowed by the presiding Judge, signed by him, and placed upon the files of the Court. The counsel for the defendant admitted that he had made the alterations by the assent or direction of the presiding Judge.</p>

Agreed statement of Facts. This was an action on the case, to recover for damages done to growing timber on plaintiff’s land, on the 17th May, 1853, by fire communicated from defendants’ locomotive engine. The writ was dated June 30, 1854. The title of the plaintiff to the premises was admitted; and that the premises were situated near the line of the railroad of defendants, almost three hundred feet distant therefrom.

On Report from Nisi Prius, Goodenow, J., presiding. This was an action of assumpsit on a promissory note. The facts in this case are given in the opinion of the Court.