Volume 43 — Maine Reports

The defendant was tried and convicted of murder in the first degree, before Rice, Justice, upon the following indictment: The jurors for… Held: her, the said Mary Knight, in and upon the throat of her, the said Mary Knight, then and there, feloniously, wilfully, and of his express malice aforethought, did strike, cut, stab and thrust, giving to the said Mary Knight, then and there, with the knife aforesaid, in and npon the throat of her, the said Mary Knight, one mortal…

<p>1. A notarial certificate that he ‘ ‘ exhibited the note at the place of business of the promissors and demanded payment thereof, was answered by the person in charge, that the promissors had left no funds there to pay said note, and that said note remaining unpaid, he duly notified the endorsers by written notices, sent them by mail, and that this was done at the request of proper authority, the time limited and grace having expired,” affords reasonable inference that he stated substantially these facts in the written notices which he sent.</p> <p>2. Notwithstanding the actual residence of the endorser of a note at the time he endorsed the note in suit, and at the time it became due, was in a place other than that to which notice of its dishonor was sent: yet if he held himself out to the public as a resident of the latter place, and thereby deceived the holder, and led him to change his course, and send the notice to that place he is estopped to deny the fact.</p>

<p>On .Exceptions to the rejection of evidence and order of nonsuit by May, J., presiding at Nisi Prius.</p> <p>This is an action to recover damages for an alleged breach of a contract, as follows:</p> <p>“ Oct. 9, 1855. This day sold W. H. Leeman house and land on Bartlett street, in Lewiston; was struck down to Patrick O’Donnell for $1200, one third cash down.”</p> <p>Ham Brooks, Auctioneer.</p> <p>1. The memorandum of the auctioneer is sufficient to satisfy the statute of frauds. Chitty on contracts, p. 305.</p> <p>2. In the sale of lands at auction the auctioneer is the agent of both parties. Cleaves v. Foss, 4 Maine R., 1; Aina v. Plummer, 4 Maine, 258.</p> <p>3. His authority need not be in writing. Alna v. Plummer, 4 Maine R., 258.</p> <p>4. The memorandum of the auctioneer is sufficient. It states the terms of the contract, the parties thereto, and a description of the property sold.</p> <p>5. If the memorandum is not so full as would be desirable, the plaintiff should have the benefit of a reasonable, fair, and liberal construction. Chitty on contracts, pp. 76, 79, 80, 82, 84.</p> <p>6. Contracts should be construed so as to give effect to the intent of the parties. Note 1, Cobb v. Fountaine, 3 Randolph, 487; Chitty on contracts, p. 110.</p>

At the trial of this action, which was brought on an annexed account, the defendant offered a receipt purporting to be in full of all demands, which the plaintiff was allowed by the Chief Justice presiding, being a witness for himself, to explain, by stating the circumstances under which it was given.

This is an action for assault and battery, for striking plaintiff in the face. Plea, the general issue, and comes before this court upon exceptions to tbe rulings of Mat, J., presiding at Nisi Frias.

This is an action of assumpsit upon a promise to deliver back a note providing the plaintiff should find a receipt from the defendant of payment of the same demand, which was alleged to be lost.

Exceptions to the law as given by Goodenow, J., at Nisi Prius.

The plaintiff at Nisi Prius, Goodenow, J., presiding, moved the acceptance of a report of referees. The defendant moved a recommitment, because injustice and partiality are manifest upon the face of the award; for excess of authority, and for newly discovered evidence. But these objections were not made in writing, and filed with the clerk. The presiding judge ordered the acceptance of the report, to which the defendant excepted.

Exceptions were taken to the rulings of the Chief Justice, who tried the cause at Nisi Brius. Under the printed words “ from the office of,” on the back of the writ, the attorney who made it had written Ms name, and it is agreed that by so doing ho did not intend to assume the liabilities of an endorser, but merely to indicate by whom it was made.

<p>Exceptions to the ruling of Rice, J., at Nisi Prius.</p> <p>This is an action on a plea of covenant broken, for the. care, support, and teaching of Jane Lenham, an indented apprentice.</p> <p>The defendant pleaded “ non est factum,” on which issue was joined. Defendant also filed a brief statement:</p> <p>1st. That he never covenanted and agreed with the plaintiff corporation, as alleged in their declaration.</p> <p>2d. That the instrument declared upon purports to be an indenture of apprenticeship, in two parts; that the same was never executed by the plaintiff corporation in proper manner, so as to make the same binding on said corporation, or that could be in any way enforced, and that the same is therefore not binding on the defendant.</p> <p>The execution of the instrument is as follows:</p> <p>Barnewell Johnson, Seal.</p> <p>Mary B. Stored, Seal,</p> <p>In behalf of the Managers of the Female Orphan. Asylum of Portland.</p> <p>To prove the issue on the part of the plaintiff, a book was offered in evidence, purporting to be the records of the Female Orphan Asylum of Portland, which showed the organization of the society under the act of incorporation, the adoption of the constitution and by-laws previously prepared, and the choice of Mrs. Mary B. Storer as Secretary, the election and dioico of managers for the year which includes date and execution of indenture. Also election of managers for the year 1848, in which Jane Lenham was received into the Asylum; election and choice of managers for the year commencing October, 1844, and ending October, 1845, and the choice of Mary B. Storer as Secretary for the same timo; authority of Mary B. Storer as Secretary, to execute bonds and indentures for and on behalf of the board of managers; election of Mary B. Storer as Secretary, and the election of board of managers for 1843-4; vote to receive Jane Lenham into the Asylum in September, 1844; the acceptance of James Lenham’s surrender of his daughter, Jane Lenham, to the Asylum; election of Mary B. Storer as Secretary for 1845-6, including the time of date of indenture; vote that Jane Lenham be bound apprentice to Mr. Johnson, the defendant. The plaintiff also offered a paper signed James Lenham, surrendering his daughter, Jane Lenham, to the Female Orphan Asylum of Portland. The plaintiff' then offered in evidence a paper purporting to be an indenture of apprenticeship, signed, sealed and delivered by Barnewell J ohnson and “ Mary B. Storer in behalf of the managers of the Female Orphan Asylum, Portland.” The signatures of Barnewell J ohnson and Mary B. Storer were admitted to be their signatures, but its admission as evidence was objected to by counsel for defendant, and excluded by the court.</p> <p>No other or further evidence being offered by the plaintiff in support of the action, the judge ordered a nonsuit.</p> <p>To which ruling and order of nonsuit the plaintiff excepts.</p> <p>As to the power to authorize the secretary to execute the indentures for the managers ; referred to the 20th vol. of Maine R., 45, Garland v. Reynolds, and said that in that case the committee appointed one of their number to act as treasurer, in fact to act for the whole committee. The town ratified the doings of the committee by recognizing the acts of the treasurer. So in this case, the corporation by their acts have adopted as their own all that their board of managers have done.</p> <p>Action is in the name of the corporation. The indentui-e offered in evidence and which was the foundation of the suit, was properly excluded.</p> <p>1. The plaintiff corporation is not a party to it, and the instrument does not purport that said corporation is a party. It does not purport to be executed in the name of the corporation by any agent, nor in the name of any agent for the corporation.</p> <p>The managers of the Female Orphan Asylum, of Portland, are, and purport to be the parties on the one part, and defendant on the other, and if any cause of action has arisen thereon, said managers must bring the suit ex officio.</p> <p>2. If the indenture can in any way be considered as purporting to be the deed of the corporation, still no authority is shown to have been given to the managers to execute the same in the name of the corporation.</p> <p>And if any such authority was given, still they have not properly executed said authority. They could not delegate it to their secretary. It should have been executed in behalf of the corportion by the managers themselves, or a majority of them.</p> <p>The alteration or addition in the by-laws, referred to by plaintiff, empowering the secretary to execute indentures in behalf of the managers, is not valid, inasmuch as by a former by-law, (the fifth, referred to by defendant,) no alteration in, or addition to, the by-laws, could be made without the concurrence of two thirds of the managers, at a special meeting, called four days previous.</p>

Reported by the Chief Justice. This action is upon a bond of a debtor who made a disclosure, in which he admitted the possession of eighty-five cents in money, a gold watch in possession of his wife, given her by himself before his residence in this state, and certain articles of furniture, received while residing in New York, from her father, of which there was a bill of sale, dated about the time of her marriage, but delivered her long since.

Trover for the conversion of a policy of insurance, and comes before the 'court upon exceptions to the instructions of Rice, J., and upon motion to set aside the verdict for plaintiff, as against the evidence in the case, and for a new trial.

This case is upon an indictment for a nuisance, and a verdict of guilty, was by consent rendered pro forma ; and tbe whole evidence is reported by Goodenow, J., and the fall court are to render such judgment as the rights of the parties may require, having power to draw such inferences as a jury should. The evidence material to the points decided is fully stated in the opinion.

<p>A suit having been brought against several upon a note of hand, as joint endorsers, and the writ, by leave of court, having been amended by striking out the names of all the defendants but one; in an action against another of those, as a several endorser; the amended writ, if admissible, taken in connection with the notes and the endorsements thereon, and the testimony in this case, will not authorize a jury to find the fact of a joint endorsement.</p> <p>Notarial protests relied on by the plaintiff and testified to by the notary as genuine, corresponding with his notarial record, and descriptive of the notes in suit, are sufficient evidence to charge the endorser upon such notes; and the production by the defendant of other and like notices can have no tendency to invalidate those relied upon or to show the want of legal notice.</p>

Bill in equity for the redemption of a mortgage, in which it is alleged that on the second day of May, A. D., 1855, one Thomas Warren, of said Portland, was seized and possessed of certain real estate, situated in said city of Portland, and conveyed the same to one Jonathan Tucker, then of said Portland, and since deceased; that said conveyance, though absolute in form, was in reality made to secure to the said Tucker the payment of certain demands held by the said Tucker…

The bill alleges that Plummer, on the second day of May, 1840, was seized of a parcel of land; that being so seized, said Plummer on the same day conveyed one-half of the same land to his daughter Jane, one of the defendants; that this deed was made in trust and without consideration; that on June 2d, 1846, said Jane reconveyed the said premises to said Plummer in execution of the trust; but there was a neglect to have the deed recorded; that Plummer died December, 1847, and…

This is an action of assumpsit. The plaintiffs offered in evidence two papers, of which the following are copies: “ Memorandum. In consideration that the city council of the city of Portland, for the purpose of adjusting a controversy, respecting the western line of my enclosed land between Vaughan street and the western promenade, has discontinued so much of said promenade as lies within my enclosure, eastward of a line drawn on a plan of the premises made by M. Q-.

<p>This is an action for breach of warranty as to tonnage of the bark “ Oak Hill.” Plea, the general issue and joinder.</p> <p>The plaintiffs read in evidence a bill of sale of said bark from the defendant to the plaintiffs, dated April 20, 1855, containing the following description: All the hull or body of the good bark Oak Hill, together with all and singular her boats, sails, tackle, apparel and furniture, now lying at Portland, not yet registered, but described as follows, to wit:</p> <p> </p> <p>“ Ira Milliken, master carpenter, of Scarborough, do certify that the bark named the Oak Hill was built under my direction at Scarborough, during the year 1854, for John Libby, 3d, of Scarborough, State of Maine; that the said bark is United States built; has two decks, three masts, is one hundred and thirty-seven feet sis inches in length, twenty-nine feet five and one-half inches in breadth, and fourteen feet eight and three-fourths inches in depth, of five hundred and forty-seven and twenty-seven ninety-fifths tons burthen. As witness my hand, the day and year aforesaid.</p> <p>(Signed.) Ira Milliken.”</p> <p>Rufus Mclntire, called by plaintiffs, testified that lie is surveyor of the port of Portland; that the bark “ Oak Hill ” was measured in the early part of January, 1855, by a return of which it appears that her length ivas one hundred thirty-seven feet and six inches, and her breadth twenty-nine feet five and a half inches, and that she measured on computation five hundred and forty-seven tons and twenty-seven ninety-fifths of a ton, and the same was certified and recorded February 1, 1855 ; that by request of persons interested he carefully remeasured said vessel April 21, 1855, and found her true length to be one hundred and thirty-three feet and ton inches, and her breadth to be twenty-eight feet and ten inches, and that she measures five hundred and nine tons and eighty-six ninety-fifths of a ton, showing an error of thirty-seven tons and thirty-six ninety-fifths of a ton too large in the former measure and certificate.</p> <p>Upon this evidence the court, Goodenow, J., presiding, ordered a nonsuit, subject to the opinion of the full court.</p> <p>Any representation of the vender concerning an article sold, if relied upon by vendee and understood by both parties as absolute assertion, will amount to a warranty. Oneida M. Co. v. Lawrence, 4 Cowen, 440 ; Whitney'- v. Sutton, 10 Wend., 411.</p> <p>To constitute a Avarranty it is not necessary to say, “ I warrant.” It is sufficient if the vender says the article is of particular quality or a particular size.</p> <p>Here was a particular description of property sold, and it amounts to a warranty of the size. Hogin v. Plympton, 11 Pick., 97; Shephard v. Kain, 5 B. and A., 240; Henshaw v. Robbins, 9 Met., 83; Cox v. Prentice, 3 M. and S., 344.</p> <p>If there be any uncertainty whether statements in the bill of sale were part of the contract and consequently a warranty, or were mere opinion, the nonsuit was improper; the case should have been sent to the jury. Long on sales, 210, 212 ; Power v. Barham, 4 Ad. and E., 473.</p> <p>The nonsuit was properly ordered. Express covenants in the bill of sale apply to title only, no proof of any representation of defendant outside of bill of sale, or that he knew of any mistake in the measurement of the vessel.</p> <p>The only ground that plaintiffs can rest their case, is upon the warranty alleged to be constituted by description of vessel in bill of sale.</p> <p>Instead of the registry of the vessel, she being new, and “ not yet registered,” defendant inserts as a description the certificate of the master carpenter, required by the laws of the United States before registry can be obtained. U. S. Statute at Large, vol. 1, page 291, act December 31, 1792, sec. 8. This does not constitute a warranty; at most it is a mere recital, in quotation marks, of what the master carpenter certifies — there is no proof that he did not so certify. Defendant merely gives the description of said vessel as she is described to him; gives on the bill of sale all the information he has in regard to her, but does not warrant or promise that it is true. The certificate under the statute quoted is a kind of temporary register which allows a vessel to be removed from the place where she is built. If there is a warranty implied in the certificate then there would be in every case of transfer of vessel where the register is recited.</p> <p>All authorities agree that representations at the time of sale of personal chattels to constitute warranties must be intended as such; if they are matters of mere description they are not warranties. Parsons on contracts, vol. 1, p. 463, note o; Richardson v. Brown, 1 Bing., 344. This certificate is called by defendant a description in so many words.</p> <p>The case of Ilonsliaw v. Robbins, 9 Met., 83, and Harding v. Lovering, 2 Pick., 214, and kindred cases, do not apply to this case, inasmuch as there is here no representation or affirmation of quality or of species or hind; and as for quantity this was a sale of the whole ship, as a unit, for a round sum — not so much per ton.</p> <p>As a test of the whole question: If the vessel had been of more tons burden than described in the bill of sale, could defendant have recovered of plaintiffs for the excess ?</p> <p>That the description of the size and tonnage of vessel in the bill of sale does not constitute a warranty, but is simply a description, like the number of acres inserted in a description of a piece of land with definite metes and bounds in a deed. We cite: Dyer v. Lewis, 7 Mass., 282; Powell v. Clark, 5 Mass., 355; Green on Ev., vol. 1, p. 38, sec. 26.</p> <p>Even if this description constituted a warranty, plaintiffs have proved no damages by the breach. A horse may be of fifty pounds less weight than described in a bill of sale of him, and he still may be as good a horse as if he were of fifty pounds more weight. As to ships, it is a matter of common experience and knowledge, that their real capacity is not measured by what they ton, according to the arbitrary rules, for measurement of vessels, laid down in U. S. laws. A vessel of less nominal tonnage, may be really of greater capacity, and carry a larger cargo, than one of much larger tonnage, as measured by rules laid down by U. S. statutes.</p>

Reported by Rice, J., at Nisi Prius. This is an action of assumpsit, the statement of which fully appears in the opinion of the court. argued that the coupon upon which the action is brought is negotiable as an attachee of bond 149, which is negotiable, and to which it refers. examined the records of the corporation minutely, critically, and at length, in order to show that the officers were not authorized to issue bond 149 with coupons.

Tbis action is trespass quare clausum, and comes on report of May, J., presiding at Nisi Prius. Both parties claim title to the locus in quo, under Sumner Stone, wbo conveyed by deed of warranty September 12, 1836, to Philip Barrows, who subsequently conveyed to Thomas Kilbourn the immediate grantor of Jewett, the plaintiff.

Exceptions. Goodenow, J., presiding. This is a complaint of bastardy. To sustain the action, the attending physician, Hr.

<p>X writ of certiorari is grantable only at tho discretion of the court.</p> <p>The hearing and determination upon a petition for a writ of certiorari must be had at Nisi Prius.</p>

The indictment charges that the defendant, on the 22d of August, 1856, at Mexico, in said county of Oxford, did commit the crime of adultery with one Catharine F. Thompson, by then and there having carnal knowledge of her body, he, the said Weatherby, being then and there a married m and then and there having a lawful wife alive, other than the said Catharine F. Thompson, and he the said Weatherby, and the said Catharine F. Thompson, not being then and there lawfully married…

Reported by Goodenow, J. Assumpsit against defendant as endorser of a promissory note, dated Boston, November 1, 1854, payable to his order in twenty months, and by him endorsed.

Exceptions and motion to set aside the verdict, Goodenow, J., presiding. This is an action of replevin for one cow and calf and one yearling heifer which plaintiff claimed to have previously hired to the defendant, and that the time for which they were hired had expired. Defendant also claimed title to the same by virtue of bargain and sale to him by said plaintiff, and introduced testimony tending to prove such sale, which sale was admitted Joy plaintiff to have Joeen made.

<p>This action was brought' to recover- damages for an Injury sustained by the plaintiff while in. the employ of the defendants, occasioned' by the carelessness of a fellow servant in the same employ..</p> <p>Rice, J., presiding, ordered a nonsuit, to which the plaintiff excepted.</p> <p>cited the following authorities: Farewell v. Boston & Worcester R. R. Co., 4 Met., 49; Hayes v. Western R. R. Co., 3 Cush., 270; Duran v. Little Miami R. R. Co., Ohio, S. C.; Skip v. Eastern Counties R. R. Co., 24 Eng. Law and Eq.; Sherman v. Rochester and Syracuse R. R. Co., 15 Barb., 574.</p>

Exceptions. Goodenow, J., presiding. This is an action of trespass-: brought by the plaintiff as mortgagee to racover-the value of. a-.stock of goods attached by R. M. Lord;, a-deputy of the-defendant, who was sheriff of York county,, at the time of such attachment.

Writ op Entry. Reported by Rice, J., presiding at Nisi Prius. There was also a motion to set aside the verdict as against law and evidence, and because it established the right of the demandant to recover all that portion of the premises which the tenant has disclaimed. The point of law raised in the report will be fully understood by the opinion of the court.

Exceptions at Nisi Prius, G-oodenow, J., presiding. The defendant was .found guilty upon both counts of the following indictment: The jurors for said state upon their oaths present, that Benjamin Hadlock, of Saco, in said county of York, on the first day of September now last passed, and on divers other . days and times, between that day and the day of the finding of this indictment, at Saco aforesaid, in the county aforesaid, not being authorized by the selectmen,…

<p>After interlocutory judgment for partition no costs can be taxed- for tfe petitioner against the respondent.</p>

Exceptions were taken by the defendant to the rulings and instructions of Rice, J., presiding at Nisi Prius. This is an action on the case, for slanderous words alleged to have been uttered by the defendant of and concerning the female plaintiff. The defendant admitted the utterance and publication of the words alleged, which imputed a charge of adultery, but introduced evidence for the purpose of satisfying the jury that the words were not uttered maliciously.

<p>Reported by Goodenow, J., sitting at Nisi Prius.</p> <p>in support of the action, cited Con. TT. S., art. 4, sec. 1; 17 Mass. R., Com. v. Greene, 521; 13 Pick., 53 ; McRea v. Mattoon, 1 Pick., 435; 12 Mass., 269 ; Story’s Con. of Laws, 453, 457; Lovejoy v. Albee, 33 Maine R., 449; 31 Maine R., 314; 21 Pick., 535 ; 5 Pick., 360, 366; 9 Mass., 462 ; 29 Maine R., 19; 10 Maine R., 291.</p>

Exceptions were taken in the case to the rulings of Davis, J., at Nisi Prius. The action was assumpsit upon a promissory note, and all the facts material to a correct understanding of the exceptions appear in the opinion of the court. The verdict was for the plaintiff, and the defendant excepted.

<p>Exceptions to the rulings of Goodenow, J., presiding at Nisi Prius.</p> <p>This was an action on a poor debtor bond, given by the defendant, Flanders Newbegin, as principal, and the other defendants as sureties, to procure the release of the said Flanders Newbegin from arrest, on an execution issued on a judgment against him in favor of the plaintiffs.</p> <p>The bond was executed on the second day of November, 1854. The defendants plead performance of the conditions of the bond by citing the creditors before two justices of the peace and quorum, and submitting himself to examination before them, and taking the oath in accordance'with the provisions of the 148th chapter of the Revised Statutes.</p> <p>At the trial it was proved and admitted that the defendant, Newbegin, duly cited the creditors to appear before two justices of the peace and quorum, on the first day of May, A. D. 1855, to attend his examination, that at the time and place aforesaid the said Newbegin appeared and submitted himself to examination on oath before two justices of the peace and quorum duly selected for that purpose; that the plaintiffs by their attorney also appeared, and proposed interrogatories in writing to the debtor, which were answered, signed and sworn to by him; that the said examination was pursued during the said first day of May, and the day following into the afternoon of said day, when the examination ivas completed, and the' said Newbegin signed and made oath to the truth of his disclosure.</p> <p>That the justices adjourned from the second to the third day>of May, 1855, at which time they met according to adjournment, and having decided that the debtor was entitled to take the oath provided for in the 28th section of the 148th chapter of the Revised Statutes, then administered to him said oath.</p> <p>The judge instructed the jury that if they found that the oath provided for in said 28th section was not administered till the third day of May, being the day after the six months from the execution of the bond had expired, and then the adjournment from the second to the third day of May was not obtained on the request, act or procurement of the plain tiffs or their attorney, then there was a breach of the condition of the bond, and the plaintiffs would be entitled to recover the full amount of their execution, with interest and costs.</p> <p>The jury returned a verdict for the plaintiffs for the full amount of their execution, with interest, and found that the said adjournment, from the second to the third day of May, was not made at the instance, request or procurement of the plaintiffs or their attorney.</p> <p>To these instructions and rulings of the judge the defendants except.</p>

Reported by Rice, J., sitting at Nisi Prius. This is a real action wherein Lewis Loomis, Ebenezer Gil-son and Daniel Lawrence demand against David Pingree, John E. Thayer and Nathaniel Thayer seizin and possession of Township No. 3, 3d Range, Franklin County. Defendants plead the general issue and brief statement, claiming title in themselves.

The facts in this case were agreed by the parties. This is an action of assumpsit brought by the inhabitants of said Wilton against the inhabitants of said New Yineyard for supplies furnished by said town of Wilton to one Jacob Welch and his family, paupers, who fell into distress in the town of Wilton, and in need of immediate relief, which was furnished by the inhabitants of said Wilton.

On Exceptions from Nisi Prim, Tenney, C. J., presiding. Assumpsit upon the following account annexed. The Inhabitants of New Sharon, To George B. Rawson, Dr., To medicine and attendance for Mrs. Nathaniel Hutchinson, by your request, she being a pauper of your town, $34,00. This action was originally brought in the S. J. Court, and during the Erst term the defendants offered to be defaulted for a sum less than twenty dollars.

<p>Where an existing street or road is dug down to the injury of the owner of land adjoining, it is not an alteration within the meaning of the statute, which will entitle him to damage. If a surveyor of highways dig down a street or road with discretion, and not wantonly, no action can be maintained against him therefor, either at common law or by statute, when acting under legal authority.</p> <p>Whore a new power is given by statute, and the means of executing it pro-' scribed therein, the power must be executed accordingly. A corporation having power to raise money for the repair of highways, may make compensation therefor in the material taken from the same in the process of making the improvement.</p> <p>But whether they can do so to the injury of the owner of the adjoining land, where the record by which the power is given shows the sole purpose to be for the benefit of the individual making the removal, may well be doubted.</p> <p>A corporation having the power to determine what repairs should be made in its roads and streets, may, through its officers, acting within the scope of their authority, exercise their own judgment, which cannot be sot aside by a jury in a suit at law.</p> <p>A street commissioner, or one acting under him, cannot be made liable for the purposes of the city council while acting under an order passed within the scope of their authority, or for his own purposes in the proper execution of the order.</p>

<p>Beported by Bice, J.</p>

Reported by May, J., presiding at Nisi Prius. This is an action of trespass as alleged in the writ. In the original location of the lots in Vassalboro’, an eight rod range-way was reserved between lots sixty-three and sixty-four, in range one, from the river back one mile.

The facts were agreed by the parties. This is an action of assumpsit brought upon a policy of insurance issued by the defendants, dated May 20, 1854, running three years. The property insured upon was entirely destroyed by fire on the night of July 3, .1855; within thirty days after said loss, the plaintiff notified the. company thereof, and within that time complied in all respects with the provisions of article 14 of the by-laws of said company.

The facts in the ease were agreed by the parties. This is a writ of error to reverse a judgment for costs recovered by defendant in error against the plaintiffs, at the March term of the court, 1856, and taxed by the clerk.

Exceptions to the rulings of Mat, J., presiding. This is an action of assumpsit upon the following count: For that the said defendants, at said Harpswell, on the first day of June, A. D. 1854, in consideration that the plaintiff then and there agreed and promised the defendants to pay them at the rate of forty dollars per ton for one sixteenth part of a certain vessel which the defendants were then building, the defendants then and there, in consideration thereof, promised…

Reported by Rice, J. This is an action of trespass quare clausum. All the facts material to a full understanding of the points decided appear in the opinion of the court. contended that this action is maintainable by force of secs. 4 and 5 of chap. 41 of the statute of 1853. That the land taken must first be fenced.

<p>An action upon a promissory note endorsed in blank, may be maintained in the name of any person who subsequently ratifies the act, although he has no interest in the note or knowledge of the commencement of the action or of the existence of the note, where there is no evidence of fraud, oppression, or any corrupt or improper motive.</p> <p>And although he had stated to the defendant in writing, that he had no interest in the suit, and had never authorized it, he may subsequently do so, and maintain the action.</p>

This is an action of assumpsit on a promissory note of which the following is a copy : $300,00. February 13th, 185G. For value received, we jointly and severally promise the President, Directors and Company of the Granite Bank to pay them, or their order, three hundred dollars in thirty days. ALONZO ELLIS, STEPHEN SCRUTON, J. G. JOHNSON.

This is an action of assumpsit against the defendant, and is presented to the full court on the following’ statement of facts: The plaintiff, in the summer of 1852, performed blacksmith’s work upon a mill which the defendant was operating.

<p>Mortgages of real estate include not only those made in the usual form, in which the condition is set forth in the deed, but also those made by a conveyance appearing on its face to be absolute with a separate instrument of defeasance of the same date and executed at the same time.</p> <p>A defeasance is a collateral deed, and to be valid must be made between the same persons who were parties to the first deed.</p>

<p>The general appearance of an attorney, without seasonable objection, is a waiver of any defect or want of service of the writ.</p> <p>Notes filed in a case constitute no part of the record, and although not corresponding with those described in the declaration, cannot be regarded as error.</p>

Reported by Cutting, J., presiding at Nisi JPrius. The plaintiff held a mortgage of a stock of goods from Horace Stevens to him, which were attached on a writ by a creditor of said mortgagor, and sold thereon by consent, in pursuance of an agreement between said creditor and the mortgagee, the plaintiff in this action, that his debt, secured by the mortgage, should first be paid from the proceeds of the sale of the goods.

Reported by May, J. This action is against a surety upon a note of hand. An action had been brought and judgment recovered against the principal debtor; property attached upon the writ had been seized by virtue of an execution upon that judgment, advertised for sale and abandoned by order of the plaintiff, and without consent of this defendant, whereupon this action is brought to recover the amount of the note against the surety.

This is an action of trespass quare clausum, and comes forward on Eeport of the evidence for the decision of the full court. The locus described in the writ contains between eight and nine acres of land in Boothbay, title to which the plaintiffs claim to have acquired by appropriation for parochial purposes, by votes of said town, and user by them for more than twenty years.

This is an action of assumpsit for one month, and sixteen days’ labor. It appeared that the defendants hired the plaintiff at Thomaston to work for them in Virginia in the lumber business and paid him twenty dollars to get out with, but nospociñc time for which he should labor was named in the agreement.

The parties submit this case to the court upon the following statement of facts: The Georges Canal Company was duly incorporated in 1846, and is still existing as a corporation under the laws of this state, and its stockholders subject to the liabilities of chap. 76, R. S. The defendant owns two shares of stock in said corporation, of fifty dollars each, and has owned the same ever since its organization, which was in 1846.

This action is assumpsit for the support of a pauper, and comes before the full court upon exceptions to the rulings of May, J., and on motion. The exceptions only are considered in the opinion of the court. The action was brought March 29, 1855, and the question is whether the pauper gained a settlement in the defendant town by a continued residence of five years.

This is an action of trespass, brought against the defendant as sheriff of this county, for taking and carrying away certain personal property.

<p>This is an indictment charging the respondents with neglecting to keep in repair a certain highway in said town.</p> <p>Reported by May, J.</p> <p>The facts necessary to a full understanding of the case appear in the opinion of the court.</p>

<p>This action is a bill in equity, and the opinion of the court clearly recites the whole facts in the case.</p>

This action, which is debt on a judgment of a justice of the peace, comes before the full court on Eeport by the Chief Justice, and all the facts fully appeal’ in the opinion of the court.

Petition for Parrtition. Reported by Mat, J. The petitioner in this case claims to have four thousand acres in township number one, in the- third' range, west of Moosehead Lake,, in this county, set off to him in severalty; alleging ownership in common and undivided with persons unknown. After the usual order of notice and a compliance with the same, Robert Bradley appeared in defence.

<p>The trustee in this case disclosed that he purchased and took a deed of the principal defendant, who is his brother, of his homestead and wood lot, and a bill of sale of personal property, for all which he paid him, part in his own notes which he then held, and another sum for which he had signed notes for him as his surety, and two other sums, being the amount of debts due from said defendant to other individuals which he promised to pay, and another sum due him from said defendant on account. And that the value of the whole property conveyed to him did not, in his opinion, exceed the consideration paid. That he was induced to purchase said property to secure himself for what was due him from the defendant, and for his liabilities to others for him, upon payment of which he would readily transfer the whole property to defendant’s creditors.</p> <p>Upon this disclosure, Cutting, J., presiding, adjudged the trustee discharged, to which adjudication the plaintiff excepted.</p> <p>argued that the facts disclosed show a fraudulent intent between the defendant and trustee, and therefore the sale was void as to creditors, and cited Gorham v. Herrick, 2 Greenl., 87; Webb v. Peel, 7 Pick., 257; Jewett v. Barnard and trustee, 6 Maine R., 381.</p> <p>cited Dearborn v. Parks, 5 Greenl., 81; Hilton v. Dinsmore, 20 Maine R., 410; Rose v. Whittier, 20 Maine R., 545.</p>

Reported by Hathaway, J. The facts contained in the report appear clearly in the opinion of the court.

This is an action of assumpsit brought to recover the amount of a bill of ship chandlery, and the following facts are agreed between tbe parties. 1.

Exceptions from Nisi Prius, Appleton, J., presiding. This action is brought against the defendant as a deputy sheriff for negligently keeping and not delivering the property attached on a writ Orr Cunningham v. James J. Twombly, which action was assumpsit in common form, upon an account for labor upon logs, which the plaintiff claims to hold as a lien for payment of his labor.

<p>Minors under the age of fourteen years may be bound as apprentices until that age, without their consent, by their father, if living; and if not by their mother or legal guardian; and above that age in the same manner, with their consent.</p> <p>The indentures should be made by the father or mother, the minor, if above the,age of fourteen years, consenting, and not by the latter with the consent of the former.</p>

On Facts Agreed. This is an action brought upon a policy of insurance effected upon the bark Georgiana. Th# parties agree that plaintiffs, at the time when said policy was effected, and when said bark was captured and condemned, were the owners of her.

Exceptions were taken by tho defendant to the rulings of May, J., in this case, which is an action of assumpsit for three months’ labor, at thirty dollars per month from May £ to August 1, 1854. The defendants relied upon their brief statement that the plaintiff agreed to work during the sawing season of A. D. 1854, and had left before the season expired without the leave or consent of the defendants, and without any justifiable cause.

<p>This action comes before the fall court upon Report by May, J., and the facts in the case are clearly stated in their opinion.</p> <p>On February 2d, 1855, the plaintiff, then a deputy sheriff, attached one eighth of the schooner Flying Arrow, on a writ, Gilmore Sylvester v. Alvan Elwell, and took a receipt, and left the property in the hands of Elwell, the defendant.</p> <p>On the 12th day of February, 1855, the plaintiff seized the same property on an execution in favor of H. M. Lancaster v. said Elwell.</p> <p>On the 8th day of March, 1855, said Elwell sold by bill of sale the same property to Gilmore Sylvester.</p> <p>On the 10th day of March, 1855, the receipt in suit was taken. On the 10th day of March, when the receipt in suit was taken, the property did not belong to Elwell, the debtor, but to Gilmore Sylvester, under his bill of sale of the 8th; hence, the action on the receipt must fail. 8 Maine, 122; 19 Maine, 49; 14 Maine, 414.</p> <p>But the plaintiff claims to recover on the ground of his seizure of the property on Lancaster’s execution, the 12th day of February. This he cannot do. That seizure was void, he not having sold the property within four days from the seizure, as the statute requires. But the plaintiff says he had a right, under the statute, to suspend and put off the sale beyond the four days, on the ground of a prior attachment, to wit, the attachment made February 2, in favor of Gilmore Sylvester. That attachment did not exist at the time of the seizure on the execution, the 12th. It had been dissolved. The plaintiff admits in his testimony that at the time he made said attachment he took a receipt for the property, and that he had no possession or control of the property after he took the receipt. The taking of that receipt dissolved the attachment. 37 Maine, 326. Hence there was no attachment on the property at the time of the seizure on Lancaster’s execution; and hence there could be no ^wspewsicm of the sale. All rights by virtue of the seizure were lost at the end of four days from the seizure. The attachment made on the 2d of February being dissolved by the officer’s taking a receipt, all rights being lost by virtue of the seizure on the execution, on the 12th, by neglecting to sell within the four days, there was no claim on the property on the 8th of March, when Elwell sold it to Gilmore Sylvester; and hence on the 10th of March, when the receipt in suit was taken, Elwell had no property in the schooner; and if so, this action must fail. There are other grounds of defence, as the court will see by an examination of the case, but as I think the one named fatal to the action, I will omit the presentation of them.</p>

The plaintiff in this case sued out his writ upon a demand bf $700 against Edwards & Goddard, and by an officer attached their goods in store and the next day purchased the same and surrendered the notes. An account of stock was taken and’the amount found to be,, nominally, eleven or twelve hundred dollars. These goods were subsequently attached'by other creditors apd this suit is brought against the officer, this defendant, for the value of the same.

Exceptions were taken to the rulings of Hathaway, J., who tried the cause at Nisi Prius, by the defendant, the verdict being for the plaintiff. This is an action of the case to recover for certain labor, and for one eighth of the proceeds of the sale of a cargo of lumber and other articles shipped on board of the bark J. Merithew, the defendant being master and part owner of the said bark J. Merithew.

<p>Tlio wife shall not be endowed when the husband is seized but for an instant, though a continued seizin, however short, entitles her to dower.</p> <p>If the tenant would defeat the demandant’s claim of dower the burden is upon him to prove that the deed and mortgage relied on constituted one transaction.</p>

This is an action of assumpsit upon a promissory note, and comes before the full court upon Report by Appleton, J. The facts contained in the report are very clearly recited in the opinion of the court, and a more extended statement is'Unnecessary for a full understanding of the case.

This is an action on the case to recover damages sustained by the female plaintiff, by reason of an obstruction placed in the highway by the defendants, and comes before the full court upon exceptions and motion to set aside the verdict, which was for the plaintiffs.

Reported by Hathway, J. This is an action of trespass against the defendants as assessors of the town of Prospect. The assessors were Ieg’ally chosen, and made their assessment in due form. The plaintiff was arrested, and paid the tax, under protest, to relieve himself from imprisonment.

Exceptions were taken to the rulings of Hathaway, J., at Nisi Prius. This is an action brought by tlio plaintiff to recover damages for injuries sustained by the overturning of a stagecoach, the defendant being a common carrier for passengers for hire.

<p>Where the jury were instructed that if they should find that, by the description of the note in a notice to the endorsers of its dishonor, that the endorsers might reasonably be presumed to know it referred to the note in suit; they might find the notice to be sufficient; such instructions were held to he correct.</p> <p>The alteration of a note of hand by the maker after it is endorsed, by adding the words “ with interest,” is material, and if made without the consent of the endorser he is not liable as such, although the alteration be made before delivery.</p>

On Report by Appleton, J. This was an action of trespass for building a dam across Chandler’s river, whereby the plaintiff’s hay, which he had left, as was customary, upon his meadow lands, was destroyed by the rise of water in the river. The defendants moved a nonsuit, on the ground that the form of action was misconceived, and that it should have been case, if any action for this injury is maintainable. The motion was overruled.

<p>Exceptions were taken to the rulings of Hathaway, J., and the evidence was reported oh a motion for a new trial.</p> <p>This was a writ of entry, wherein the demandant claims the western half of a certain farm in Whiting.</p> <p>The presiding justice instructed the jury that the deeds put into the case by the defendant, of Samuel Ackley to Ralph Ackley, dated December 13th, 1839, and that of Ralph Ackley to the defendant, dated October 3d, 1849, make a record title in the defendant which must prevail, unless the deed from Samuel Ackley to Ralph Ackley is shown to be fraudulent and void, and the defendant was a party to, or had knowledge of the fraudulent transactions. If the jury should be satisfied from the evidence that at the time said deed was executed and delivered, Samuel Ackley was indebted to a larger amount than he could pay, and that the deed was a voluntary conveyance without any consideration, designed to delay or defeat creditors, it would be void as against creditors of the defendant having a knowledge of the situation of the grantee, and the fraudulent purpose of the conveyance, and he could stand in no better condition than the grantee of Samuel Ackley, and could not claim against the creditors of Samuel Ackley or subsequent bona fide purchasers for a valuable consideration, or unless there was a reconveyance from Ralph Ackley to Samuel Ackley of the demanded premises and the defendant had actual notice of such reconveyance prior to the time of taking his deed from Ralph Ackley. The plaintiff requested the presiding judge to instruct the jury that if the conveyance from Samuel Ackley to Ralph Ackley was bona fide and valid, and there was a. reconveyance of the western half of the farm from Ralph to his father on May 7, 1842, and Sevey had such notice of its existence as men would usually act upon in the ordinary affairs of life, the mortgage would be good and Sevey’s deed could not prevail against it; but the presiding judge declined to give this instruction.</p> <p>A verdict was returned for the tenant.</p> <p>Exceptions and motion to set aside verdict.</p> <p>T. The presiding judge should have given the instruction requested by demandant’s counsel; at least some instruction should have been given to guide the'jury in their deliberations upon the point of “ actual notice ” by the tenant of the deed, Ralph Ackley to his father.</p> <p>Actual notice may be inferred from circumstances as well as any fact, however important, not required by law to be in writing, and circumstances are often more cogent than the positive testimony of a witness.</p> <p>The language of the instruction requested was taken from the instruction given in the case, Curtis v. Mundy, 3 Met., 405, under a similar statute in Mass., which instruction was in that case held to be correct.</p> <p>The circumstances shown in the case at bar, from which a jury might infer actual notice to the tenant of the deed in question, were very strong. There can be scarcely a doubt that the jury understood from the instruction given, that they must find the actual presence of the defendant at the execution of the deed at Lowell & Dunn’s office, and that he actually saw it executed and delivered. • For want of instructions sufficiently explicit, the court will grant a new trial, if it be seen that there is good reason to believe that justice has not been done by the verdict.</p> <p>2. The instructions given as to the record title in the case, were erroneous; for the tenant instead of exhibiting a perfect defence to the prima facie case made out by the demand-ant, failed to show any legal defence for the following reasons :</p> <p>Samuel, after his deed of general warranty to Joseph Cutler, of May 7th, 1842, recorded May 9th, 1842, was estopped to deny that he was seized at that time of the demanded premises, and that that deed conveyed a good title; and the grantor, being and continuing in possession became the tenant at will of Cutler. Currier v. Earl, 13 Maine R., 216; White v. Patten, 24 Pick, 324. And Sevey, (the tenant) coming into possession under a deed of general warranty from Samuel Ackley, dated July 1, 1842, is privy in estate, and equally estopped. By this deed Sevey acquired Samuel Ackley’s right in equity to redeem the mortgaged premises of Cutler, and became Cutler’s tenant at will. White v. Patten, before cited; Treviman v. Lawrence and ah, 1 Salk., 276; Coe v. Talcott, 5 Day 58; Fairbanks v. Williams, 7 Greenl., 97; Carson v. Astor, 4 Peters, 83; Hamblin v. Bank of Cumberland, 19 Maine R., 66; Haines v. Gardner, 10 Maine R., 383; Hill v. West, 8 Ham, 222; Pike v. Galvin, 29 Maine R., 183.</p> <p>A party cannot set up a title adverse to that under which he acquired the possession. Charles v. Jones, 4 Dana, 479 ; Mellen v. Shackleford, lb., 264; Jackson v. Walker, 7 Cow., 637 ; Mosher v. Reding, 12 Maine R. 198.</p> <p>So long as the conveyance exists, and the grantee is not evicted from the land, he is precluded from disputing the title of his grantor. Bliss v. Smith, 1 Ala., 273; 1 Sup. U. S. Dig., 652, pp. 28, 29, 30.</p> <p>The tenant (Sevey) had actual as well as constructive notice of the mortgage under which the- demandant claims. If the demandant had instituted this action at any time after the assignment of the mortgage to him, and prior to October 3, 1849, the date of the deed from Ralph Ackley to the tenant, there would not have been the slightest pretence of any defence to the action.</p> <p>The estoppel is not affected by that deed. Ralph Ackley was also estopped to dispute Sevey’s and demandant’s title. Sevey’s, by permitting his father to sell the land to Sevey, and the land to go into his possession without objection from him. Hatch v. Kimball, 16 Maine R., 146.</p> <p>The tenant had enjoyed quiet and undisturbed possession of the land for seven years under his deed, knowing the existence of the mortgage before he purchased, having from Mr. Porter seventy dollars to stop the sale of the equity of redemption only seven days prior to the date of his deed from Samuel Ackley. Ralph Ackley set up no claim to the land and was estopped as above said.</p> <p>The tenant sought him to purchase, for a nominal sum, (as may be inferred from the circumstances,) for the evident purpose of defeating the demandant’s claim.</p> <p>The instruction requiring the jury to find that Samuel Ackley “was owing debts more than he could pay,” in order to make his deed to his son Ralph, if without consideration, fraudulent and void, was erroneous. This farm was all the property he had, not by law exempted from attachment. He took the poor debtor’s oath and disclosed no property. Nor did it appear that in the mean time he had sold any. If there was an intention to hinder, delay and defeat creditors, the conveyance was fraudulent, notwithstanding the grantor might not have owed more than he could pay without resorting to the land. It was surely fraudulent if the conveyance was a voluntary one, without consideration, although the farm might be worth double the amount of his debts, unless he had property enough to pay his debts, exclusive of the farm. But the farm was all that he had not exempted.</p> <p>The demandant claims to recover in this action by virtue of a mortgage deed (dated May 7, 1842, recorded May 9, 1842,) from Samuel Ackley to Joseph Cutler, and by Cutler assigned to him on the 26th of March, 1846.</p> <p>But at the time of the execution of the mortgage and assignment, the record title to the premises was in Ralph Ackley, to whom Samuel Ackley had conveyed on the 13th of December, 1839.</p> <p>The tenant claims title under a deed from Ralph Ackley to him dated October 3d, 1849, duly recorded.</p> <p>This makes a perfect record title in the tenant, and so the presiding judge instructed the jury.</p> <p>To avoid the effect of this title the demandant contended that the deed from Samuel Ackley to Ralph Ackley was fraudulent as against creditors, and that the tenant was a party to or had knowledge of the fraud, and so could not avail himself of his title under Ralph Ackley.</p> <p>•This question was submitted to the jury under proper instructions from the judge, and decided in favor of the tenant.</p> <p>The demandant further contended that there had been a . reconveyance of the promises from Ralph Ackley to Samuel Ackley, prior to the mortgage to Cutler, and that the tenant - had notice of such reconveyance before his purchase of Ralph Ackley, and so was precluded from availing himself of his title under Ralph. But there was no record of any deed from Ralph to Samuel, nor was any deed produced.</p> <p>Upon this point the presiding judge instructed the jury that such a position could not be successfully maintained unless the tenant liad actual notice of such reconveyance prior to the taking his deed from Ralph Ackley.</p> <p>The instruction was given in the language of the statute, R. S., chap. 9, sec. 26.</p> <p>It should have been more strongly stated for the defendant, because the judge might have added consistently with legal principles that the burthen of proof was upon the demandant to show such notice to the tenant.</p> <p>The demandant must show actual notice.</p> <p>In the case of Pomroy v. Stevens, 11 Met., 244, the court say that it is not sufficient to prove facts that would reasonably put him on inquiry. He is not bound to inquire, but a party relying upon an unregistered deed against a subsequent purchaser, an attaching creditor must prove that the latter had actual notice or knowledge of such deed.”</p> <p>This case is cited by Wells, J., in the case of Spofford v. Norton, 29 Maine R,, 146, and adopted as the true construction of the statute of this state.</p> <p>In the case of Hanley v. Morse, 32 Maine R., 289, the same construction is reasserted.</p> <p>The authorities are uniform in the cases decided by this .court, in the use of the language, that there must be actual ■notice or knowledge of the existence of an unregistered deed, in order to affect a subsequent record title.</p> <p>The terms notice and knowledge, as here used, are synonymous; knowledge of the existence of a deed is actual notice, and there can be no actual notice without knowledge.</p> <p>The question as to what state of facts would establish actual notice, was for the jury to determine, and was determined by them in favor of the defendant.</p> <p>This instruction was correct, but less favorable to the tenant than it might legally have been made.</p> <p>■ 2: But the demandant’s counsel requested the presiding judge to instruct the jury, that actual notice is such notice as men would naturally act upon in the affairs of life. When the language of the presiding judge is plain, clear and explicit, following the words of the statute, which are equally plain, clear and explicit, he cannot be properly called upon to go any further by way of illustration or supposition of cases.</p> <p>Now what can be plainer than the meaning of the words “ actual notice?” The language of the requested instruction does not change the meaning of those words, nor does it elucidate their meaning.</p> <p>A judge may illustrate a principle of law in his charge to a jury, but he is not required to do so, if the principle be clearly stated to the jury. This request was made upon the strength of the case of Curtis v. Mmnday, 3 Met., 405. In that case, the presiding judge, in charging the jury, illustrated his views of the law by examples, which were made the grounds of exception, and the court sustained the verdict, because the evidence was plenary of “ actual notice.”</p> <p>It is one tiling to sustain a verdict under such instructions, quite another to set aside a verdict because the presiding judge saw fit to state the law, without the illustrations given in another case by another judge.</p> <p>But in the latter case of Pomroy v. Stevens, the court say there must be actual notice or knowledge of the deed, and such is the law of this state.</p> <p>The request was properly refused for another reason. There was no evidence in the case to form a basis for the request. The defendant testifies distinctly that he had no knowledge of the reconveyance, if there was such a deed from Ralph Ackley to Samuel Ackley, when he took his deed from Ralph, nor for a long time after. The existence of such a deed is not a fact beyond dispute. There is no testimony to disturb the positive statement of Sevey. The most that can be said as to the plaintiff’s evidence, is, that it tends to establish certain facts, from which if Sevey had had any knowledge of them, an inference might be drawn that he had actual notice of the deed. But this knowledge is in no way carried home to Sevey.</p> <p>But in any event, the demandant can complain of nothing except that the presiding judge left it to the jury to determine what was actual notice, instead of stating to them his own ideas of the meaning of these terms.</p> <p>If the presiding judge saw fit to leave the question to the jury, and they have decided it properly, the verdict will not be disturbed. Copeland v. Wadleigh, 7 Maine R., 141; Pike v. Warren, 15 Maine R., 390; Hathaway v. Crosby, 17 Maine R., 448. That they did decide it properly there can be no doubt.</p>

Exceptions were taken to the rulings of Appleton, J., at Nisi Prins. Held: five hundred twenty-five dollars, and which was endorsed on said note; on that one which was taken by said Pierce, and which he still held, the same amount, and on that one for two thousand dollars which was taken by said Jenness, and which he had endorsed andtransferred, before it was due to Hinkley & Egery, the sum of eleven…

<p>Authority given to an agent to arrange an unsettled affair, and draw on his principal for such sums as were necessary, is a virtual acceptance of a draft made with the knowledge and assent of such agent.</p> <p>But such draft cannot he substituted for another, payable to the order of a different person, without the knowledge or consent of the principal or his agent.</p>

Reported by Hathaway, J., presiding at Nisi Prius. The action is brought upon a-promissory note of the following tenor. $180,00. , “Robbinston, November 29,1855. “ Three months after date, I promise to pay Yose & Joyce or order, one hundred and eighty dollars with interest, at the Calais Bank,' value received. “Amaziah Nash.” With an endorsement on the back, “ Pay to the order of William Patterson. “ Yose & Joyce.” William Patterson, the plaintiff, a ship carpenter,…

Reported by HATHAWAy, J. An appeal was taken from a decree of the Judge of Probate in the county of Washington, accepting- the report of commissioners appointed by said judge, to make partition of the real estate of Simeon Crocker deceased, among said Crocker’s heirs. The case comes before the full court on report of the facts submitted by agreement of the parties, but no determination was made at Nisi Prius by the presiding judge.

Reported by Appleton, J., presiding at Nisi Prius, from which it appears that this action was brought against the defendants as co-partners in a lumbering operation, and that the goods sued for were used in that operation for the benefit of both defendants, who shared equally in the profits, one having furnished funds and the other performed the necessary labor. The only question raised was whether the defendants were co-partners.

On agreed statement of facts. Writ of entry to recover possession of a lot of land in Bangor. The defendant is in possession of the premises as administrator of the estate of Eliza M. Campbell, and also as lessee under her heirs at law, she having died in February, 1856, leaving no children. The plaintiff claims title under a quit claim deed, dated February 1, 1854, from Benjamin G-. Campbell, and Eliza M. Campbell, his wife,i in her right to himself.

This is an action of covenant broken. April 11, A. D. 1853, the defendant conveyed to the plaintiff, by deed of warranty in common form, one undivided eighteenth part of the eastern half of township numbered three, in the eighth range of townships, on the Sebois stream, in the county of Penobscot, covenanting with said plaintiff, his heirs and assigns, that he was lawfully seized in fee of the premises, that they were free from all incumbrances, that he had good right to…

Bill in Equity, in which the plaintiff alleges that he was, on or about the nineteenth day of November, A. D. 1856, notified by John H. Wilson, sheriff of the county of Penobscot, that he held in his hands an execution against your orator, in favor of Benjamin E. Baker, of Norridgewock, in Somerset county, with directions to collect the same of your orator; that your orator was until that time totally ignorant that such an execution was in existence, or that any judgment had…

The parties in this case agreed upon the following statement of facts: This is an action of trespass commenced before a justice of the peace, for breaking and entering the plaintiff’s close, in Alton, in this county. Judgment was for the plaintiff in the court below, for damage and costs, from which the defendant appealed in due form.

<p>Upon hearing of a motion to set aside a verdict, because a juror who tried the cause was related to the prevailing party, the proof should ex-~ clude the reasonable possibility of knowledge of this fact on the part of all parties making the motion, and of their counsel.</p> <p>One claiming- by record title will prevail against a prior deed unrecorded, unless the grantee has actual knowledge of the prior conveyance.</p>

<p>In order to enforce a lien for services on logs, it is necessary that the property on which the labor was performed should be specifically inserted in the writ, as the property to be attached, and the officer therein ordered to attach it, instead of the property of the defendant, as is usual in all writs of attachment.</p> <p>An officer cannot regard the averments in the declaration or endorsement of an attorney on the writ, when inconsistent with the express commands to him within directed.</p> <p>Under the statute of 1848, chap. 72, the proceedings in regard to the debtor are in personam.; but so far as the general owner of the property is concerned, when the laborer has contracted with another person the proceedings are strictly in rem.</p> <p>Until the statute of 1855, chap. 144, the res could not be legally represented in court.</p> <p>It is necessary, in order to preserve the lien on logs attached, that the owners should have due notice of the pendency of the suit.</p> <p>The act of 1848, and the additional act of 1855 have materially changed the law of lien on lumber.</p>

<p>An exception in a deed must be a portion of the thing granted, or described as granted, and which would otherwise pass by the deed.</p> <p>"Where a tract of land is granted in clear and unmistakable terms, the grantor, and those claiming under him, are estopped to say in a court of law, that the land thus described in the deed was inserted by mistake, and parol evidence is inadmissible to show that another piece of land was intended to be conveyed.</p>